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In a recently decided alimony case captioned Barlow v. Barlow, the Florida Court of Appeal ruled that a trial court should utilize the most recent income figures available in calculating alimony and child support and not rely on past earnings. In this case the Husband appealed the trial court’s ruling concerning the calculation of alimony and child support and the division of marital assets. The Court of Appeal ruled that the lower court made a mistake in calculating the Husband’s bonus income. The Court reversed the lower court’s ruling and required the trial court to retry the case.

The Husband and Wife agreed on the amount of the Husband’s base salary at the time of the divorce in 2015. In calculating the Husband’s income, the trial court utilized the Husband’s bonus in 2013, rather than utilizing the Husband’s bonus in 2014. The Florida alimony statute requires courts to take into consideration all sources of income available to both parties in awarding alimony. The Florida child support statute requires courts to include bonus income in calculating child support.

Income from bonuses should be utilized in calculating alimony and child support when the bonuses are continuous and regular. Here the trial court used the Husband’s 2013 bonus in calculating support payments. The trial court utilized this amount because it was the last bonus that the Husband received prior to the date of the filing of the divorce. The Court of Appeal held that the lower court should have utilized Husband’s 2014 bonus, which was the most recent bonus that the Husband earned prior to the date of the trial. A party’s most current income, or income that is expected to be earned in the near future, should be used in calculating alimony and child support awards. Past income figures should not be utilized when the Court has access to current figures. In the case at bar, the Court incorrectly utilized bonus income figures from 2013, instead of using current income figures from 2014. The husband’s bonus in 2014 was significantly lower than in 2013. The Court held that the final judgment should reflect the fact that the husband’s income was reduced. The Court of Appeal reversed the lower court and instructed the trial court to recalculate alimony and child support.

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In paternity unwed/unmarried parents cases, gifts from the paying party’s family members and gifts from the paying party’s boyfriends and girlfriend may be included in calculating the paying party’s income. In a recently decided case captioned Wood v. Wood, the father started working for a company owned by his girlfriend. In his financial affidavit the father listed his monthly income. The trial court found that the father earned a salary from the father’s employment, but also believed that another source was paying the father’s expenses. The trial court imputed additional income to the father from his family and from  his girlfriend. When the case was presented to the Florida Court of Appeal, the father argued that the trial court misunderstood his financial circumstances and argued that the trial court’s ruling was erroneous. The Court of Appeal agreed with the father and found that the trial court’s ruling was based on speculation. The Florida Court of Appeal and reversed the lower court’s ruling.

The Court of Appeal ruled that in a paternity action, a party’s income includes expenses that are reimbursed if they reduce living expenses. In imputing income, a trial court is required to make a specific determination as to the exact amounts of the reimbursed expenses.  When gifts from family members and friends are ongoing and continuing and it is shown that they will occur in the future, they may be included in calculating a party’s income for purposes of calculating child support.

In this case, the Court of Appeal found that the evidence did not warrant a finding that the father received additional income from his family or from his girlfriend. The Court of Appeal found that the evidence did not warrant the conclusion that the parents’ gifts to the father would continue into the future. Additionally, there was no evidence that the girlfriend reimbursed the husband’s expenses.

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In a modification of alimony case, a payor’s alimony obligation can be reduced when the recipient voluntarily reduces their needs. In a recently decided case captioned Regan v. Regan, the trial court granted the Husband’s petition for modification.  The trial court permitted a reduction of the Husband’s alimony obligation from $9,000 per month to $7,800 a month. When the parties were divorced, they agreed that the Husband would pay $9,000 per month. The wife also received retirement accounts and investment accounts as part of the settlement. After the divorce, the wife significantly reduced her expenses by moving to another state, selling the marital house, and purchasing a smaller home. The trial court found that these reductions constituted a substantial change of circumstances and warranted a modification of alimony.

The Florida Court of Appeal held that where a party is required by the court to make alimony payments and the financial ability of either of the parties changes, either party is entitled to apply to the court for a modification of alimony. The trial court has the authority to make changes that equity requires, taking into account the parties’ changed financial ability or the circumstances of the parties. The trial court has the authority to increase or decrease alimony. In order for a modification to be granted there must be a substantial change in circumstances that was not contemplated at the time of the divorce which is material, sufficient, involuntary and permanent. The involuntary aspect has been applied where a party’s ability to pay is reduced. Where a recipient voluntarily reduces his or her living expenses, a reduction in alimony may also be granted. Where, as here, the recipient spouse’s expenses are reduced by more than one half as a result of her reducing the size of her home and moving out-of-state, the Husband’s alimony obligation may be reduced.

To speak with a modification of alimony attorney in Palm Beach Gardens, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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In a recently decided alimony case, the Florida Court of Appeal stated that permanent alimony is intended to allow the recipient spouse to maintain the standard of living established by the parties during the course of their marriage. In this case, the parties were married for 39 years and had adult children. The parties agreed upon the distribution of their assets, but were unable to agree upon the amount of the wife’s alimony award. The parties agreed that the Wife was to receive ½ of the Husband’s military retirement benefits. The parties both took on debt. During the course of the marriage, the wife worked and raised the parties’ children while the Husband served in the military. The wife was a bartender in the marriage’s early years and was then a realtor. The wife was then in a motorcycle accident and was not working at the time of the trial. The wife was in the process of attempting to obtain disability benefits at the time that the trial took place. At the time of trial, the Husband was retired and was working on a contract basis. The husband also received a disability check.

The trial court found that the wife had a need for alimony and that the husband had the ability to pay. However, the court only awarded the wife a small amount of alimony and failed to describe how it calculated this amount. The Florida Court of Appeal reversed the trial court. The Appellate Court ruled that the amount of an alimony award should allow the recipient spouse to maintain the parties’ standard of living during the course of their marriage. The alimony award must also be consistent with the payor’s ability to pay and the other spouse’s need. The Court of Appeal found that the small alimony award was not supported by the competent substantial evidence.

Additionally, the trial court imputed income to the wife based upon the possibility that the wife might receive disability benefits if her claim was approved. The Appellate Court reversed this ruling, holding that imputed income cannot be based on speculation concerning future events.

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In a recently decided alimony case captioned Jimenez v. Jimenez, the Florida Court of Appeal stated that in reaching a decision concerning alimony, a trial court is required to consider every one of the factors set forth in the Florida Statutes. In deciding whether or not to award alimony, a trial court is required to decide whether one of the parties has the ability to pay alimony and whether the other party has the need for alimony. If a court determines that one party has the ability to pay alimony and that the other party has the need for alimony, the court is required to consider all of the following ten factors. First, the standard of living established by the parties during the marriage. Second, the length of the marriage. Third, the physical and emotional condition of each of the parties and the age of the parties. Fourth, each parties assets and liabilities. Fifth, the parties’ earning capacities and the need for additional training and education. Sixth, each of the parties’ contribution to the marriage. Seventh, the need to stay home with any minor children. Eighth, the tax consequences of an award of alimony. Ninth, each parties’ sources of income from employment or investments. Tenth, any other factor that the court considers is necessary to reach a fair and just resolution of the matter.

In the event that the trial court fails to consider all of the alimony factors, the case will be reversed on appeal. At that point the case will be remanded to the trial court to retry the case.

To speak with an alimony attorney in Wellington and Palm Beach Gardens, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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In a recently decided alimony case captioned Jimenez v. Jimenez, the Florida Court of Appeal stated that in reaching a decision concerning alimony, a trial court is required to consider every one of the factors set forth in the Florida Statutes. In deciding whether or not to award alimony, a trial court is required to decide whether one of the parties has the ability to pay alimony and whether the other party has the need for alimony. If a court determines that one party has the ability to pay alimony and that the other party has the need for alimony, the court is required to consider all of the following ten factors. First, the standard of living established by the parties during the marriage. Second, the length of the marriage. Third, the physical and emotional condition of each of the parties and the age of the parties. Fourth, each parties assets and liabilities. Fifth, the parties’ earning capacities and the need for additional training and education. Sixth, each of the parties’ contribution to the marriage. Seventh, the need to stay home with any minor children. Eighth, the tax consequences of an award of alimony. Ninth, each parties’ sources of income from employment or investments. Tenth, any other factor that the court considers is necessary to reach a fair and just resolution of the matter.

In the event that the trial court fails to consider all of the alimony factors, the case will be reversed on appeal. At that point the case will be remanded to the trial court to retry the case.

To speak with an alimony attorney in Palm Beach Gardens, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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In a recent division of property and assets case, captioned Gotro v. Gotro the Florida Court of Appeal held that a trial court should not include expended assets in an equitable distribution scheme unless these assets were dissipated as a result of one of the parties’ misconduct. In this case, the parties had a 39 year marriage and had 4 adult children. The husband was the primary breadwinner. The husband had a number of bank accounts which were marital assets. The significant bank accounts, for purposes of this appeal, were two accounts at BBVA Compass Bank. By the time that the final hearing took place, the balances in these two bank accounts was significantly lower than they had been at the time of the filing of the divorce. The husband testified that he had used the money in these accounts for his living expenses. The husband requested that the trial court distribute these accounts based upon their value at the time of the final hearing and not as of the date of the filing of the dissolution of marriage. In fashioning its final judgment, the trial court used the values in the accounts as of the date of the filing of the divorce.

In fashioning a division of property and assets the trial court can utilize any date of valuation that the court decides is equitable and just. Different assets can be valued as of different dates. However, it is usually inappropriate to include assets that no longer exist in a division of property scheme. The exception to this rule is when one of the parties’ misconduct results in dissipation of the parties assets during the pendency of the proceedings. A parties’ misconduct may become the basis for assigning an expended asset to that spouse. If the trial court decides to do this, in its ruling, the court must make specific findings that spouse engaged in intentional misconduct. The court must find that the parties’ expended asset was used for a purpose unrelated to the marriage during a time when the parties’ marriage was undergoing a breakdown.

If your spouse has used marital assets to support a girlfriend or a boyfriend, contact Florida divorce attorney Matthew Lane, Esq. at Matthew Lane & Associates, P.A. at (561) 363-3400.

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A same-sex divorce case involving alimony, palimony and an oral cohabitation agreement was recently decided by the Florida Court of Appeal. The case was captioned Armao v. McKenney. During the course of the parties’ relationship, the parties entered into an oral cohabitation agreement. The parties agreed that they would live together, work together, take care of each other emotionally and financially, provide for each other, and be a couple. They characterized their relationship as being: “just like a married couple.” They combined their assets, investments, income, and inheritances. They participated in a blessing ceremony. They held themselves out as a couple during their 46 year relationship.

The Defendant earned approximately $500,000.00 during the course of the relationship. He gave all his paychecks to the Plaintiff. The Defendant owned a home before the parties met. When the Defendant sold his home, he gave the proceeds to the Plaintiff. When the Defendant’s mother died, he gave his inheritance to the Plaintiff. In the Counterclaim, the Defendant sought half of the balances in all of the accounts held by the Plaintiff, representing one half of the parties’ combined assets.

The Florida Court of Appeal held that in a same-sex divorce, couples can be found to have entered into enforceable contracts that establish their rights and responsibilities toward each other. These agreements must be based upon lawful and valid consideration which is separate and apart from any agreement involving sexual relations.  There is no requirement that these agreements be in writing.

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In a recently decided alimony case captioned Hua v. Tsung, the husband filed an action for divorce. The parties were married for 17½ years. The Husband and wife were in their early forties. The Husband was the primary breadwinner and wife was a homemaker and stay-at-home mother. The Husband owned several businesses during the marriage. The Husband owned part of a restaurant. The Husband also allegedly owned shares in a company named DSC Holdings Limited. At the time of the divorce, the husband lived with a new girlfriend and their two minor children in Brazil. The Wife lived in Broward County, Florida, and took care of the parties’ minor children. During the marriage, the wife and the husband received generous gifts from the husband’s parents. The husband’s father bought them a home in California. When the parties moved to Florida, the Husband’s parents bought them a home in Broward County. The Broward County home was valued between $650,000 to $700,000. The parties also bought a rental property. The parties’ comfortable lifestyle was due in large part to the Husband’s father. The wife earned no income.

The Court of Appeal stated that in awarding alimony, the trial court must first make a specific factual determination concerning whether one party has an actual need for alimony and whether the other party has the ability to pay alimony. After making these two factual determinations, the trial court must then determine what type of alimony to award. The alimony statute sets forth several factors for the trial court to consider in choosing the type of alimony to award, including, but not limited to, the age of the parties, the duration of the marriage, the earning capacities of the parties, the financial resources of the parties, the employability of the parties, and the contribution of the parties to the marriage. A rebuttable presumption exists in the alimony statutes that a marriage lasting more than 17 years is a long-term marriage. An award of permanent alimony is appropriate after the dissolution of a long-term marriage.

To speak with an alimony attorney in Jupiter, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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The division of property and assets in a Florida divorce begins with the division of the parties’ assets into two categories, marital assets and liabilities and nonmarital assets and liabilities. Marital assets are those assets accumulated during the marriage by the parties from their work, earnings and services. In determining whether property is a marital asset, the question is not which party holds title to the asset. The trial court divides the marital assets and liabilities between the parties. In a recently decided case captioned Hooker v. Hooker, the Florida Supreme Court stated that although the trial judge possesses discretion to reach an equitable distribution of the parties’ marital assets, there is a presumption that an even division is equitable, unless one of the parties shows otherwise.

Gifts made between the parties during the course of the marriage are marital assets. In order for one spouse to prove that a gift was made during the course of the marriage the recipient must prove: (i) a donative intent, (ii) possession or delivery of the property, and (iii) surrender of control and dominion over the property. In other words, a gift is made when a spouse intends to make a gift, the gift is given to the other party, and the donor relinquishes possession and control over the property. Where the evidence shows that an a gift was made, the property is then subject to distribution as a marital asset.

To speak with a divorce attorney in Wellington, Florida about the division of property and assets in Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.