These traditional notions have come under fire because of demographic changes in the workforce and stories of unfairness to spouses obligated to pay alimony.  It was such criticisms that recently motivated the Florida Legislature to send alimony reform legislation (Senate Bill 718) to Governor Rick Scott, which would have radically changed the way of calculating alimony awards and outright ban permanent alimony.  Although the governor vetoed the legislation because he expressed concerns over the retroactive component of the legislation and its impact on alimony awards previously issued in Florida divorces and thus create financial uncertainty, the issue will likely be raised again in a new bill as alimony reform is occurring in many states across the U.S.

Horror stories offered in support of the proposed reforms often involve husbands and a growing number of wives ordered to pay alimony amounts that are inconsistent with the amount awarded by other courts under comparable circumstances or to pay for periods longer than the duration of the marriage.  Those supporting alimony reform in Florida suggest that the lack of standards in the law for determining the amount and duration of an alimony award has resulted in awards that are inconsistent and unpredictable.  The internet is full of websites with stories of spouses ordered to pay hundreds of thousands of dollars in alimony over a period of time that far exceeds the length of the marriage. 

However, those who support maintaining permanent alimony and opposing alimony reform in Florida contend that economic changes have not mirrored demographic changes that the reform advocates claim to have reduced the need for permanent alimony.  A study reported in a book entitled “The Divorce Revolution” indicates that typically women experience a 70 percent decline in their standard of living following divorce whereas men experience a 42 percent rise in their standard of living.  This statistical data has been re-affirmed by a recent study from an Australian researcher.  Opponents of alimony reform argue that divorce continues to have a disproportionately punitive financial impact on women.

The recent alimony reform bill that was vetoed by Gov. Scott would have made a number of changes supported by those who think the alimony system in Florida is unfair to those obligated to pay:

• The legislation would have made it more difficult to qualify for alimony in short-term marriages.
   
• The duration of alimony payments would have been capped at half the length of the marriage.
   
• 50-50 time-sharing of children would have been established as the norm absent extraordinary circumstances.

Given Gov. Scott’s rationale for rejecting the legislation, the prospects that new legislation will be proposed that is not retroactive is highly probable.  If you are considering retaining an experienced West Palm Beach divorce law firm and have questions about seeking alimony, our attorneys may be able to help.  No matter where you are located, the experienced attorneys at the Law Offices of James S. Cunha are just a phone call away.
 

Some spouses automatically assume that marital infidelity falls directly within the purview of the provisions governing the division of marital assets and debts. See Fla. Stat. 61.075.  Although it may be disheartening to some, it is most often the case that an adulterous spouse will not be punished in a divorce proceeding with respect to the division of marital property for engaging in an extramarital affair.

However, when a spouse’s infidelity is accompanied with financial misappropriation of marital assets and/or income, Florida law provides for an exception to its “no-fault” divorce policy. If a spouse is able to establish that substantial “gifts” were made by their spouse to the individual with whom that spouse was/is engaged with in an extramarital affair, the use of marital assets/income by the cheating spouse to further the extramarital affair may be taken into consideration for the purposes of arriving at an equitable distribution of marital property. See Beers v. Beers, 724 So.2d 109 (Fla. 5^th DCA 1998) (citing Gentile v. Gentile, 565 So.2d 820 (Fla. 4th DCA 1990).  Additionally, should the cheating spouse be collaborating with the individual with whom they are engaged with in an extramarital affair to hide marital assets, it would constitute a violation of that spouse’s fiduciary duty to protect and disclose marital assets, and thus would be relevant when the Court is making the determination to equitably distribute marital assets and debts.  See Rabbath v. Farid, 4 So. 3d 778 (Fla. 1^st DCA 2009).

With regards to alimony, Fla. Stat. 61.08 does permit a Florida divorce court to consider adultery of each spouse and the circumstances in the determining the amount of alimony, if any, is to be awarded. See Fla. Stat. 61.08; see also Enfinger v. Enfinger, 566 So. 2d 261 (Fla. 1st DCA 1990).  Nonetheless, the court still is required to first make the specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.  Fla. Stat. 61.08(2). Unless either party establishes a need for alimony, then adultery does not become an issue with respect to alimony. 

Occasionally, adultery may become the central issue in a divorce under certain circumstances.  For example, when the parties had previously waived any claims against the other for alimony in an antenuptial agreement “….unless the basis for the dissolution is adultery, physical abuse, mental or emotional abuse.”  See Weymouth v. Weymouth, 87 So. 3d 30 (Fla. 4th DCA 2012).  

With regard to children, if an extramarital affair is impacting the children of the marriage, adultery may be relevant when fashioning orders on child care and responsibility.  For example, immediate and sudden exposure to a partner in a new dating relationship when a divorce is pending may not be regarded as being in the best interest of the kids.  If a parent is unavailable to exercise custodial time with the children because of involvement with a romantic partner, this may also be an issue the court may consider when determining an appropriate parenting plan.

It is essential to keep in mind that the issue is not whether or not your spouse has been unfaithful, but how that infidelity can be shown to have impacted specific material issues in your Florida divorce.  This is not always comforting to a spouse who feels that the infidelity of a marital partner destroyed the faithful partner’s marriage, but Florida Courts generally do not consider adultery as a relevant issue in a divorce case with the exception of certain limited circumstances. 

If you are considering retaining an experienced West Palm Beach divorce law firm and have questions about how marital infidelity may be relevant or other questions about divorce in Florida, our office may be able to help.  No matter where you are located, our experienced and dedicated West Palm Beach family law firm is just a phone call away.

When parties attempt to negotiate and draft a marital settlement agreement in Florida without legal advice and guidance, the potential roadblocks and pitfalls are almost insurmountable.  Imagine trying to quarterback a professional football team when you have never played football in your life and do not even know the rules of the game.  While this may sound like an outrageous and impossible proposition, it is fairly comparable to handling your own divorce settlement with absolutely no legal assistance.

Examples of issues that make handling your own divorce settlement in most cases a dicey proposition include, but are not limited to the following:

• Distribution of large, complex marital estates
• Property classification issues
• Division of pensions and retirement accounts
• Custody and visitation of minor children
• Child support issues
• Alimony or spousal support
• Issues arising from owning a business
• Issues dealing with marital waste and intentional misuse of marital funds

Admittedly, there are specific cases where it may be appropriate to proceed without an attorney but those situations are fairly limited. To put it another way, self-negotiated marital settlement agreements typically are appropriate in marriages of extremely brief duration where you have no children and own virtually no property or debts together.  If your situation does not fall within these narrow parameters, there are a number of benefits that can be derived from seeking legal advice when attempting to work out a marital settlement agreement.  The benefits to retaining counsel are the following:

Informed Negotiations: The law has specific standards for deciding certain issues that can make these issues easier to resolve because a finite range of options exists.  If you have legal advice on how a court will view an issue and the likely resolution, your negotiations are informed by realistic expectations.  When parties negotiate in a vacuum with no understanding of their legal rights and probable outcome on issues in front of a judge, this makes it easier to get sidetracked on irrelevant issues or proposals that are not enforceable.

Protection from Overreaching:  Many relationships involve spouses that are in different positions in terms of their earning capacity, separate assets owned prior to marriage, financial sophistication and other factors.  This can create a situation where the bargaining power is unequal so that the outcome is more the result of one spouse bullying another rather than a genuine give and take through negotiation and compromise.

Compliance with Legal and Procedural Requirements: Many times couples that try to prepare their own divorce judgment based on a marital settlement agreement face the aggravation of having their paperwork repeatedly rejected by the court because it does not comply with requirements for form or substance.  Spouses that do not have access to legal advice when negotiating a marital settlement agreement may also make mistakes like failing to accurately prepare property disclosure or trying to include a waiver of child support which is not enforceable.

Poor Drafting Equals Unintended Consequences: The terminology and precise language used in a marital settlement agreement can have a drastic impact on the outcome of a divorce.  If you do not have an attorney prepare the agreement or review the language you may find that the agreement does not result in the outcome you anticipated.  The spouse impacted by the imprecise language may find that when an issue arises their former spouse is not particularly motivated to fix the problem.  This type of mistake can significantly compromise the fairness of the divorce settlement.

These are just a few of the ways that seeking out legal advice and counsel from an attorney at the Law Offices of James S. Cunha, P.A.  Our experienced West Palm Beach divorce law firm can protect you from critical errors and save you money.  While tough economic times makes the proposition of saving money attractive, sometimes a little invested early in the process will pay off big dividends later.  If you are considering retaining an experienced West Palm Beach divorce attorney and have questions about the divorce process, our law firm can assist you.  No matter where you are located, our West Palm Beach divorce law firm is just a phone call away. 

Under Fla. Stat. § 61.141(1)(b), a party may seek a modification of alimony if one’s spouse is in a “supportive relationship.”  Since remarriage terminates the obligation to pay alimony, a former spouse may therefore have an incentive to continue to live together in a “de facto” marital relationship in order to avoid termination of spousal support.  When making a determination as to whether a former spouse’s cohabitation arrangement justifies a modification of alimony, the court will consider a number of factors, including the following:

• Duration of cohabitation in a permanent residence
• Extent the parties have worked together to produce or improve something of value
• Degree that either party has worked for the other’s business or employer
• Evidence suggesting an express or implied agreement regarding sharing of assets or financial support
• Whether they have pooled their financial resources and income or kept them segregated
• If either has performed services of value for the other or the other’s business
• Whether either party has supported the other
• Joint purchases of property (real or personal)
• Support provided by one of the parties to the children of the other

The process of evaluating these factors can be complicated and may require extensive discovery of bank records, deeds, title documents, and other evidence.  In order to make a compelling case structured by these statutory factors, the evidence must be presented in a persuasive and articulate manner.  Our attorneys conduct a careful and thorough investigation of the facts in order to determine whether the statutory factors apply.  A reduction of a former spouse’s financial need due to a supportive relationship may be one avenue to achieving a modification of alimony; however, a modification of alimony may also be justified if it can be shown that a former spouse is partially supporting a new partner.

No matter where you are located, the experienced and knowledgeable West Palm Beach divorce lawyers at the Law Offices of James S. Cunha are just a phone call away.  Call us today at (561) 429-3924.

When one spouse resides in the family home during the time the divorce is pending, the issue of financial responsibility for damage to the home during the divorce may arise.  There may be situations where a spouse living in the home during a pending divorce intentionally permits or causes damage to the home because the spouse does not want to keep the asset.  When the home has negative equity, the party in the home may be particularly indifferent or hostile to the idea of maintaining the family home. 

Section 61.075 of the Florida Statutes provides that the initial position for dividing the marital assets is that they should be equal but that this may be affected by multiple factors including intentional destruction or waste of marital assets after filing the petition for dissolution or within two (2) years prior to the date the petition is filed.

The spouse who is in control of an asset during a pending divorce has a duty and responsibility to avoid “waste” by causing damage to the family home.  When the spouse in control of the asset does not exercise appropriate care to preserve the asset, the other spouse that receives the house as part of the equitable distribution of property in a Florida divorce may be entitled to an offset.

The spouse that moves out of the family home during a pending divorce may be well advised to take photos of the condition of the property so that damage caused during the divorce can be established.  If the spouse who is awarded the home did not reside in the home during the divorce process, it is also a good idea to take photos of any damage immediately upon moving back into the home.

If the negotiation process is still ongoing, the cost of repairs may need to be accounted for by adjusting the property division.  If a martial settlement agreement has been executed or a divorce judgment has already been entered prior to discovering that the property had been damaged, a hearing may be necessary to have the judgment modified to compensate for the damage.

No matter where you are located, our experienced West Palm Beach divorce attorneys are just a phone call away.  Even if you just have questions about property and debt distribution issues but have not decided to take action, we can provide the initial answers to help you determine the best possible approach to your difficult family law issues so call us today at (561) 429-3924.

Alimony is designed to provide financial assistance to a party that was financially dependent on one’s spouse during marriage.  While the most important criteria for a court considering alimony include the need of the dependent spouse and ability to pay of the spouse ordered to pay, there are many other factors that are considered based on case law and other Florida statutes. 

Currently, there are four forms of alimony that may be awarded by a judge in a Florida divorce, which include permanent alimony, rehabilitative alimony, durational alimony and bridge the gap alimony:

Permanent Alimony: This type of alimony that may be awarded in a long-term marriage (or in shorter marriages in unusual circumstances) is intended to provide for the needs of the recipient spouse based on the standard of living during the marriage.  This type of alimony may be appropriate when no other form of alimony is reasonable and/or fair, and the recipient spouse does not have the financial capacity to provide for the spouse’s needs as established during the marital relationship.

Rehabilitative Alimony: This type of alimony is provided pursuant to a specific plan to permit that recipient spouse to re-develop skills or receive new training so that the spouse can become self-supporting.  This type of alimony award will specify the period of time necessary under the rehabilitation plan for the recipient spouse to become self-supporting.

Durational Alimony: When a marriage is of short or medium duration, alimony may be awarded for a specified period of time to provide temporary economic assistance.  This type of financial support may be appropriate when permanent alimony is not appropriate because the recipient spouse does not need permanent financial support.

Bridge the Gap Alimony: This form of alimony is limited to a maximum period of two years.  It is intended to assist the financially disadvantaged spouse during the transition from being married to single life.

The proposed bill in its current form would modify the Florida alimony statute in the following ways:

• The marital standard of living would be eliminated as a factor in determining alimony.

• Permanent alimony would no longer be available.

• Awards and modifications of certain types of alimony and amounts become dependent on meeting newly established evidentiary standards.

• The judge must provide written evidentiary findings based on relevant factors for determining alimony to justify an award.

• Presumptions of imputed earning ability are assigned to the recipient spouse.

• The modification of spousal support cannot be based merely on a reduced child support obligation.

• Formulas are established based on duration of marriage and income of the spouses for determining the amount of alimony.

• It creates a presumption that the parties’ standard of living will be lower following divorce.

• Retirement would result in termination of the obligation to pay alimony.

• The burden to establish need shifts to the paying spouse in some situations.

• The bill provides a schedule to review existing support and permits termination and modification of existing alimony awards.

Because the law concerning alimony may change significantly, it is important to seek legal advice regarding the potential impact of these changes if you are contemplating divorce, or you are currently the recipient or a paying spouse subject to an alimony award.  If you are considering retaining an experienced South Florida attorney and have questions about alimony, our office may be able to help.  No matter where you are located, West Palm Beach family law attorney James S. Cunha and his staff are just a phone call away.

• Document demands or Requests for Production: This form of discovery provides a means to obtain relevant records and documents from your spouse or an indication that the documents do not exist or cannot be located. Upon receiving the responses, your attorney will decided whether any missing records should be subpoenaed directly from the third party or pursue more aggressive measures against the spouse who is refusing to produce the records that are being requested.

• Requests for Admissions: This form of discovery can be critical because your spouse must admit or deny specific facts under penalty of perjury.

• Interrogatories: These are written answers to questions that may cover a wide range of issues in your divorce process. False answers to interrogatories also may constitute perjury.

• Deposition: When your spouse is deposed, they must provide live, sworn testimony in the form of answers to questions asked by your attorney. A deposition of your spouse typically is conducted in one of the attorneys’ offices where the person being deposed is under oath, and a court reporter memorializes the testimony.

• Pay stubs or other documents reflecting income
• Mortgage agreements and promissory notes covering real property
• Deeds for residential, vacation and investment properties
• Tax returns
• Retirement account statements
• Records relating to bank and investment accounts
• Credit card records and statements

Florida Statute Section 61.075(1) enumerates the factors that a judge may consider when determining an equitable distribution of marital assets and debts.  The statute specifically designates the following factors for consideration: (1) the contributions of each spouse during the marriage, (2) the financial circumstances of the parties, (3) the duration of the marriage, (4) the sacrifice of personal careers or educational opportunities of either spouse, (5) the contribution to the personal career of the other spouse, (6) the desirability of retaining any asset, including an interest in a business, corporation, or professional practice, (7) each spouse’s contribution to the purchase, improvement or enhancement of assets, and production of income or the incurring liabilities, (8) the desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, (9) a spouse’s intentional depletion, waste and/or dissipation of marital property, and (10) any other factors based on justice and fairness to both parties.

While these factors may sound rather expansive, Florida courts have construed this provision narrowly in terms of reaching an unequal division of marital property based on misconduct.  Generally, misconduct by a spouse must result in actually diminishing the size of the parties’ marital estate to justify an unequal distribution of marital property. 

Below are just a few basic factual scenarios where Florida appellate courts have either affirmed or reversed the family court’s unequal distribution of marital property:

(Affirmed) Unequal Distribution of Marital Property

• A spouse diverting money to an improper relationship in the form of gifts, hotel expenses, travel costs
• Gambling losses by a spouse

(Reversed) Unequal Distribution of Marital Property

• Spouse made high risk investments
• Support obligations from prior marriages
• Showing that an affair by a spouse led to emotional hardships to the family

The general principle that emerges from the above scenarios is that the misconduct generally must not be condoned, and under certain situations known at the time, by the other spouse.  The misuse of the marital funds also must be intentional and result in an actual depletion of the parties’ marital estate.

Documents Reflecting Income and Benefits:  The income of both parties is critical to the resolution of multiple issues including property and debt division, alimony and child support.  If you bring relevant documents that reflect family income, an experienced Florida divorce attorney can provide fairly accurate estimates on child support and will have more insight on what to expect in terms of alimony.  Although alimony awards are highly unpredictable in Florida, your attorney can provide more meaningful projections with the following:

• Paystubs
   
• Account statements related to dividends, investment income, capital gains and other forms of income
   
• Tax returns during the last 3 years
   
• Other documents that reflect benefits with a financial value like insurance policies

Title, Deeds and other Ownership Documents:  Any documentation that evidences ownership of residential property, vacation property, investment property, motor vehicles, boats and the like.

Retirement Account Statements:  Retirement accounts constitute important assets that will have an impact both on the equitable distribution of property and alimony.  A current retirement account statement will provide critical information that your divorce attorney needs to determine a preliminary analysis of your interest in retirement accounts.

Bank and Investment Account Information:  Statements that reveal bank and investment account balances also will help in evaluating your current financial status.

Insurance Policies:  If you have life insurance policies, annuities and similar assets, you should be prepared to provide information about these assets though you may not need to actually bring in documents to the initial meeting.

While many people attend their initial consultation without these documents, the quality of the information you receive can depend on providing as much information regarding your financial and income information as possible.  While attorneys differ on how much information they will provide during an initial consultation, more relevant or substantive data provides the attorney with an opportunity to make more accurate predictions in terms of what you might expect.

No matter where you are located, experienced West Palm Beach divorce attorneys are just a phone call away.  Even if you just have questions about the divorce process in a West Palm Beach divorce but have not decided to take action, we can provide initial answers to help you evaluate your options so call us today.