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Tuesday, December 13, 2011

RECENT ALIMONY, IMPUTED INCOME AND EQUITABLE DISTRIBUTION CASES AND LAW IN FLORIDA


Welcome to the
Law Offices
of
Edward J. Chandler, P.A.
708 East Atlantic Boulevard    Telephone:  (954) 788-1355
Pompano Beach, Fl 33060    Facsimile:  (954) 788-1357

Attorney Edward J. Chandler has successfully represented numerous clients in dissolution of Marriage cases throughout the State of Florida.  Edward J. Chandler  prides himself on aggressive representation with a personal touch.

In addition to personally handling your case, Edward J. Chandler, Esq. will be available to you during every step of the divorce process. Edward J. Chandler guarantees that you and your case will receive his undivided attention.

Call the Law Offices of Edward J. Chandler, P.A.  at (954) 788-1355  - Your phone consultation is free and completely confidential.

Review of the trial court's decision:

The appellate court will review a trial court’s equitable distribution of marital assets and
award of alimony for abuse of discretion. Lule v. Lule, 60 So. 3d 567,
569 (Fla. 4th DCA 2011); Rafanello v. Bode, 21 So. 3d 867, 869 (Fla. 4th
DCA 2009). By statute, a trial court must formulate a complete equitable
distribution: “In any contested dissolution action wherein a stipulation
and agreement has not been entered and filed, any distribution of marital
assets or marital liabilities shall be supported by factual findings in the
judgment or order based on competent substantial evidence with
reference to the factors enumerated in subsection (1).” § 61.075(3), Fla.
Stat. (2009) (emphasis added).

EFFECT OF STIPULATIONS OR AGREEMENT BEFORE THE TRIAL COURT:
 
A binding agreement to convey real property from the marital estate to one of the
parties requires a writing signed by the parties, or an explicit bilateral
stipulation on the record before a court reporter. See § 725.01, Fla. Stat. and Farrell v. Farrell, 661 So. 2d 1257, 1259 (Fla. 3d DCA 1995).
A joint stipulation must be  “entered and filed” in accordance with section 61.075(3).


Imputed Income:


The standard of review of a court’s decision to impute income is whether it is supported by competent, substantial evidence. Mount v. Mount, 989 So. 2d 1208, 1209 (Fla. 2d DCA 2008). A court may impute income where a party is willfully earning less and the party has the capability to earn more by the use of his best efforts. Schram v. Schram, 932 So. 2d 245, 249 (Fla. 4th DCA 2005). Zarycki-Weig v. Weig, 25 So. 3d 573, 575 (Fla. 4th DCA 2009). In considering imputation of income, “the court must determine whether the subsequent unemployment resulted from the spouse’s pursuit of her own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.”


Bridge-the-Gap Alimony


 “A trial court’s decision on whether to award permanent periodic alimony is subject to an abuse of discretion standard of review.” Hornyak v. Hornyak, 48 So. 3d 858, 861 (Fla. 4th DCA 2010); see Mondello v. Torres, 47 So. 3d 389, 396 (Fla. 4th DCA 2010) (noting that “the nature and amount of a n award of alimony is a matter committed to the sound discretion of the trial court” (citation, internal quotation marks, and alteration omitted)); § 61.08(2), Fla. Stat. (2009).


In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each
party.
(d) The financial resources of each party, the nonmarital and the
marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire
sufficient education or training to enable such party to find
appropriate employment.

(f) The contribution of each party to the marriage, including, but
not limited to, services rendered in homemaking, child care,
education, and career building of the other party.
(g) All sources of income available to either party.


THE NEEDS OF THE SPOUSE:

The needs of the spouse requesting the alimony and the ability of the other spouse to make alimony payments.
Leonardis v. Leonardis, 30 So. 3d 568, 570 (Fla. 4th DCA 2010) (citation and internal quotation marks omitted). “The criteria to be used in establishing this need include the parties’ earning ability, age, health,
education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates.” Mallard v. Mallard, 771 So. 2d 1138, 1140 (Fla. 2000) (citation and internal quotation marks omitted). “The standard-of-living is not a super-factor” over the other considerations. Donoff v. Donoff, 940 So. 2d 1221, 1225 (Fla. 4th DCA 2006); see Pirino v. Pirino, 549 So. 2d 219, 220 (Fla. 5th DCA 1989) (“Indeed, it is the exceptional case when a couple’s resources and earnings prove sufficient to maintain two independent households in the same manner as the original household.”). “[T]he parties’ standard ofliving during the marriage is not a useful guide in awarding alimony where the parties lived beyond their means,” as in this case. Nichols v. Nichols, 907 So. 2d 620, 623 (Fla. 4th DCA 2005) (citation and internal quotation marks omitted); see § 61.08(2)(a), Fla. Stat.“Clearly the husband cannot be required to maintain the wife’s standard of living when this maintenance stretches beyond his financial capacity.”
Pirino, 549 So. 2d at 220. Alimony is not intended “to fund the enjoyment of every little luxury enjoyed before divorce.” Levine v. Levine, 954 So. 2d 741, 743 (Fla. 4th DCA 2007).
The court may consider any other factor necessary to do equity and justice between the parties. § 61.08(2), Fla. Stat.

In contrast to permanent periodic alimony, “[b]ridge-the-gap alimony is designed to ease the transition of a spouse from married to single life.” Hornyak, 48 So. 3d at 862. It “is most appropriately awarded in
instances where the receiving spouse is already employed, possesses adequate employment skills, and requires no further rehabilitation other than a brief time to ease the transition to single life.” Cohen v. Cohen, 39 So. 3d 403, 406 (Fla. 4th DCA 2010) (citation and internal quotation marks omitted); see Wofford v. Wofford, 20 So. 3d 470, 474 (Fla. 4th DCA 2009) (“Bridge-the-gap alimony serves to assist a spouse already capable of self-support during the transition from being married to being single.”
(citation, internal quotation marks, and alteration omitted)). “Where no rehabilitative plan is presented, a bridge-the-gap award must have a relatively brief durational limit.” Hornyak, 48 So. 3d 862; see Mills v.
Mills, 948 So. 2d 885, 886 (Fla. 3d DCA 2007) (“Bridge-the-gap alimony is to assist a spouse with any legitimate, identifiable, short-term need.” (citation, internal quotation marks, and ellipsis omitted)). The Fifth
District Court of Appeal en banc affirmed a twelve-month, bridge-the-gap alimony, where “the former wife ha[d] adequate employment skills and an exemplary employment record” as not being a n abuse of discretion.
Engesser v. Engesser, 42 So. 3d 249, 252 (Fla. 5th DCA 2010) (en banc). A “[d]isparity in income alone does not justify an award of permanent periodic alimony” and that “[a]n award of permanent alimony is improper where the evidence does not reflect permanent inability on the part of the wife to become self-sustaining.” Rosecan v. Springer, 845 So. 2d 927, 929, 930 (Fla. 4th DCA 2003) (citation and internal quotation marks omitted).

JEWELRY AS MARITAL ASSETS:

“Marital assets” include “[i]nterspousal gifts during the marriage.” § 61.075(6)(a)1.c., Fla. Stat. (2009); see Ruiz v. Ruiz, 548 So. 2d 699, 699- 700 (Fla. 3d DCA 1989) (reversing trial court for failing to treat the
uncontroverted purchase of jewelry with marital assets as marital property subject to equitable distribution and citing § 61.075 relating to interspousal gifts as declaratory of Florida law). “Under well-established
statutory and case law, an interspousal gift during the marriage is a marital asset.” Maddox v. Maddox, 750 So. 2d 693, 694 (Fla. 1st DCA 2000); cf. Gardner v. Gardner, 452 So. 2d 981, 983-84 (Fla. 5th DCA
1984) (“Separate property of a spouse includes assets of one spouse acquired from a source outside or unconnected with the marriage, such as by inheritance, property owned prior to marriage, or gifts from third
parties.”). Any gift of jewelry from Former Husband to Former Wife bought with marital assets remains a marital asset.

POST PETITION SPENDING: Post-petition spending is not always waste. See Bush v. Bush,
824 So. 2d 293, 294 (Fla. 4th DCA 2002) (recognizing error to include as part of the equitable distribution scheme a portion of stock options husband had depleted during dissolution proceedings to satisfy couple’s
financial obligations).

Law Offices
of
Edward J. Chandler, P.A.

708 East Atlantic Boulevard    Telephone:  (954) 788-1355
Pompano Beach, Fl 33060    Facsimile:  (954) 788-1357

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