Archive for February, 2011


Alimony – general information

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There are 6 types of alimony that can be awarded in Florida: permanent alimony, durational alimony, rehabilitative alimony, bridge-the-gap alimony, temporary alimony, and lump sum alimony. Each type of alimony serves a different purpose.

Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage. The theory behind permanent alimony is to allow a spouse who has not worked (or has lower income or lower earning potential) to continue to live in the same standard of living as enjoyed during the marriage. There must be a showing by the party seeking permanent alimony that the other party has the ability to pay the alimony amount requested.

Permanent alimony is more likely to be awarded in a long term marriage (defined as a marriage greater than 17 years in length). Permanent alimony can be awarded in medium length marriages (defined as marriages of 7 years but less than 17 years). In medium length marriages, the greater the length of the marriage and the greater the disparity of income influence whether permanent alimony is awarded. In exceptional circumstances, permanent alimony can be awarded in short term marriages (defined as a marriage of less than 7 years). This is very rare and usually only happens when one spouse has been seriously injured or has come down with an incurable disease that does not allow them to support themselves.

Rehabilitative alimony is more typically awarded in medium length marriages and short term marriages. Rehabilitative alimony may be awarded to assist a party in establishing the capacity for self-support through either: the redevelopment of previous skills or credentials; or the acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials.

The party who is seeking rehabilitative alimony has to show the court a specific and defined plan of rehabilitation (such as attendance at college or vocational training). Often the rehabilitative claim is made by a party who has given up their education or job to raise children and now needs support so they can finish or reestablish themselves in the workforce with education and/or training

Florida’s newest type of alimony is durational alimony. Durational alimony may be awarded when permanent periodic alimony is inappropriate. The purpose of durational alimony is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration. A key principal of durational alimony is that the party seeking durational alimony does not have to have to present a rehabilitative plan. Until durational alimony came into existence, the judge had to decide between permanent alimony or rehabilitative alimony. Now, there is an in between solution.

Bridge-the-gap alimony is short term alimony and cannot exceed 2 years. It is awarded to allow a lesser earning party to ease the financial transition from married to single life.

Unlike child support, there are no alimony guidelines. Therefore, an award of alimony, if any, is decided by the Court considering Section 61.08 of the Florida Statutes. The court also considers case law from the Florida Supreme Court and Florida District Courts of Appeal in deciding entitlement to alimony, type of alimony, amount of alimony, and duration of alimony.

Included herein is part of the Florida Statutes on alimony which sets forth the factors that the court looks at in determining the alimony issue.

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, including the nonmarital and the marital assets and liabilities distributed to each.

(e)The earning capacities, educational levels, vocational skills, and employability of the parties and, 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)The responsibilities each party will have with regard to any minor children they have in common.

(h)The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.

(i)All sources of income available to either party, including income available to either party through investments of any asset held by that party.

(j)Any other factor necessary to do equity and justice between the parties.

Copyright © 2011 Steven A. Leitman*
Original posting on 904Divorce.com
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*no copyright is asserted as to any
portion of the Florida Statutes


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Military Divorce

A Military divorce involves certain issues and laws that differ from a civilian divorce. Over the years, I have had the pleasure of representing members of the military as well as spouses of military members.

One of the most challenging issues in a military divorce is how to arrange appropriate time-sharing (this is the term that replaced custody and visitation) taking into consideration the member’s deployment. In civilian cases this is typically not an issue as both parents usually live in the same vicinity throughout the year.

Accommodations should be negotiated to provide the member adequate time with the children upon return from deployment. Also, while deployed consistent contact between the member and the children via phone (when available) and email is critically important so that a healthy bond is maintained.

A divorce attorney handling military cases needs to be familiar with the Servicemembers Civil Relief Act (formerly the Soldiers and Sailors Relief Act). This Act provides certain protections to a military member when they cannot participate in the divorce case due to their service requirements. This issue typically comes up when a non-member tries to proceed with a divorce from a member who is deployed or fighting a war in a foreign country.

Knowledge as to how military retirement benefits are dealt with in a Florida divorce case is also important. Florida law provides that retirement benefits earned during the marriage are to be equitably distributed (the starting point is 50/50). However, this is not the same as saying the non-member receives 1/2 of the entire retirement benefit which the member receives upon retirement. Often times the member was enlisted prior to the marriage and/or will provide service after the divorce which would be considered non-marital.

It should be noted that if the member and non-member are married for at least 10 years during which time the member served in the military, then the non-member can receive direct pay from the military. Anything less than 10 years does not qualify.

Entitlement to survivor benefits is another issue that has to be dealt with in a military divorce. Many members do not want survivor benefits awarded to their non-member spouse as it lowers the net amount they will receive. However, non-members want the protection that survivor benefits provide. There is no automatic right to survivor benefit coverage so this issue sometimes has to be decided by the court.

Copyright © 2011 Steven A. Leitman
Original posting on 904Divorce.com
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Equitable Distribution – general information

Equitable distribution is the term used by Florida court’s to distribute assets and liabilities.

Assets include, but are not limited to, real property (marital home, lots, investment property), personal bank accounts, cars, boats and retirement assets (401-K, pension, IRA). Liabilities include, but are not limited to, mortgages, credit card debt, lines of credit, personal loans and car payments.

The court starts with the proposition that assets and liabilities should be divided equally, unless there is justification for an unequal distribution, based on the following factors (these factors were taken from the Florida Statutes dealing with equitable distribution):

the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.

(b) The economic circumstances of the parties.

(c) The duration of the marriage.

(d) Any interruption of personal careers or educational opportunities of either party.

(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.

(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.

(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.

(h) 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, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.

(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.

(j) Any other factors necessary to do equity and justice between the parties.

Copyright © 2011 Steven A. Leitman*
Original posting on 904Divorce.com
copyscape
*no copyright is asserted as to any
portion of the Florida Statutes


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Child Support – general information

The calculation of child support in Florida is controlled by child support guidelines. To calculate child support, there are several factors that must be considered in every case. What is the net monthly income of each party? How many children do the parties have together? What is each parent’s time-sharing with the children? What is the monthly daycare costs of the children? What is the monthly health insurance costs of each party? What is the monthly health insurance cost of the children?

Before agreeing on a child support figure a complete understanding of how net income is calculated including what constitutes gross income and what deductions are allowed from gross income needs to be understood. The correct calculation of net income could have a substantial impact on the actual amount of child support paid.

It is important to also note that there may be reasons to deviate from the child support guidelines due to factors set forth in the Florida Statutes. I will address the issue of deviation in a future separate post.

Copyright © 2009 to 2012 Steven A. Leitman
Original posting on 904Divorce.com
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