Current Case Summaries

SAME SEX MARRIAGE: OLD ISSUES IN A NEW CONTEXT

With the United States Supreme Court's recent ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the marital rights of same-sex couples to the full array of legal protection previously accorded only to traditional couples is now the law of the land. An example is found in the recent Florida appellate case, Dousset v. Florida Atlantic University, et al., 40 Fla.L.Weekly D2155 (4th DCA, September 25, 2015). In Dousset, a non-resident was seeking Florida residency for tuition purposes by virtue of the applicant's earlier Massachusetts same-sex marriage to a Florida resident. Citing Obergefell, the appellate court reversed F.A.U. 's earlier administrative determination that the applicant was not entitled to Florida residency by virtue of the marriage.

With new rights come old issues which earlier only concerned traditional couples. These issues include prenuptial agreements, separation and marital settlement agreements, divorce, alimony claims, equitable distribution of marital assets and liabilities, annulment and adoption of children (with all the associated issues of child support, timesharing and parental rights), The existing body of Florida law - statutory and case law- on these matters now fully applies to same-sex couples.

With over 36 years of experience in marital and family law, l can offer one word of advice: Look before you leap. As many same-sex couples are fully employed and may have significant present or future income and assets to protect, the value of a prenuptial (or, 'pre-marriage') agreement may be extremely important and recommended. Well-prior to the date of the marriage, it is important to set aside time to meet with an experienced family law attorney to review options in the event the marriage is not successful. You may be able to shelter many assets owned prior to or even acquired after the marriage from claims by the other prospective spouse through the creative use of a prenuptial agreement. The cost incurred in preparing these agreements typically is a fraction of the professional fees which would be incurred in a divorce action without the protection of a valid prenuptial agreement.

PRENUPTIAL AGREEMENTS: MORE IMPORTANT THAN EVER

The Florida Supreme Court rarely addresses the topic of prenuptial agreements but did so in a recent important case, Hahamovitch v. Hahamovitch, 40 FIa.L.Weekly 5477 (Fla., September 11, 2015). The couple married in 1986 for 22 years with the husband, then-age 46 and the wife, then-age 28, entering into a prenuptial agreement prepared by counsel for Mr. Hahamovitch and presented before marriage to the lawyer for his intended bride. Two children later, the parties filed for divorce and the wife challenged the strict terms of the agreement. The case points to the merits of a careful drafting of the agreement which will render it an effective blueprint for the divorce even after decades of marriage.

In Florida's divorce code, the equitable distribution statute (Chapter 61.075, F.S.) defines 'marital' and 'non-marital' property (assets and liabilities) which a trial court must itemize, value and distribute to each spouse in the divorce. However, the statue also states that non-marital assets and liabilities (which may not be distributed) include "those excluded from marital assets and liabilities by valid written agreement of the parties." This is the legal basis for the benefit of a well-drafted prenuptial agreement.

Here, the prenuptial agreement used very broad language to define the prospective wife's waiver of any interest in her then-future husband's premarital assets. In the agreement, she was "... barred from any and all rights and claims of every kind, nature and description to which she might be entitled .... to any of [the Husband's] property now owned or hereby acquired ...." Also, if after the marriage the husband purchased any new property and placed the title in his name alone, it would remain solely his asset. The Wife argued that the agreement did not specifically waive her right to share in the enhancement of any of his premarital property due to the expenditure after the marriage of "marital labor or funds." The Florida Supreme Court disagreed citing the all-encompassing and broad language in the prenuptial agreement of the Wife's waiver of "any and all" interest in her husband's premarital assets. The use of the broad language in the agreement saved Mr. Hahamovitch from having to divide the appreciation of the value of his non-marital assets with his wife. The careful drafting of his prenuptial agreement likely saved the wealthy husband from a serious financial hit in the divorce case.

ALIMONY: THE 'NEED AND ABILITY' TEST FOR ALIMONY IS ALIVE AND WELL

Florida law provides for a variety of types of alimony based in large part on the length of the marriage in years as well as a consideration by the court of a list of factors found in the Florida statutes. However, a key element in the award of alimony is the need of the spouse requesting it for the alimony and the ability of the other spouse to pay the amount requested. Both the 'need' and ; 'ability' elements of the alimony case must be proven by the requesting spouse, the failure of which may result in the denial of the alimony claim. A new Florida appellate court case, Dorworth v. Dorworth, 40 Fla.L.Weekly D2074 (4th DCA September 11, 2015), reiterated the importance of meeting both sides of the 'need'/'ability' requirement.

In Dorworth, a nine-year marriage, the trial court awarded the wife three years' worth of durational alimony (i.e., a monthly sum awarded largely in short-term marriage for a period not to exceed the length of the marriage) as well as substantial six-figure sum as lump sum alimony. The wife, an attorney and member of the Florida Bar, was employed as a placement officer for a Florida law school. On appeal, the husband argued that the durational alimony, lump sum alimony and her salary when combined exceeded her 'need' for his support even though it was clear he had the 'ability' to provide the ordered alimony. Citing several leading cases around Florida, the appellate court reiterated that "(a)n order awarding alimony in excess of the recipient spouse's needs will be reversed as an abuse of discretion [by the court], absent special circumstances." Due to the trial court's "lack of clarity" as to how it calculated the wife's expenses and income, the appellate court sent the case back to the trial court to determine these numbers with specificity.

The Dorworth lesson is clear: When preparing to request alimony, the spouse must present to the trial court both a clear set of numbers setting out the spouse's 'need' for a specific amount of alimony and the other spouse's 'ability' to pay for the requested alimony.

'DISSIPATION': WHEN CAN YOU HELP YOURSELF TO A MARITAL ACCOUNT DURING A DIVORCE?

Typically when a divorce case is filed, access to financial assets such as bank accounts, retirement accounts and the like, is restricted. This is to prevent one party from invading the account, emptying its contents and leaving the other spouse without the means to pay ongoing expenses, secure a lawyer or to have the account available for final division between the parties by the court. Such wasting of this category of marital assets is referred to in Florida law as a 'dissipation'. If the divorce court later finds that one party dissipated a financial asset for the marriage solely for the benefit of that party, the court may determine the amount of the dissipation and place that in the column of that party when the remaining marital estate is equitably divided between the spouses. (This will justify an 'unequal distribution' of the net marital estate between the spouses by the court.) Also, an improper withdrawal of funds from a marital account may trigger a hearing where the assistance of the court is sought to compel a return of the money to the account pending the conclusion of the case.

However, there is a circumstance under which one party in a divorce case may unilaterally access a marital financial asset: When the withdrawal of funds is for the purpose of maintaining the marital estate pending the divorce. An example is the withdrawing of funds from the joint bank account by one party to pay the mortgage or other required maintenance on the former marital home.

In a recent Florida appellate case, Kyriacou v. Kyriacou, 40 Fla.L.Weekly D1962 (2nd DCA, September 4, 2015), the appellate court reiterated that the spouse challenging a withdrawal of funds by the other spouse from a joint financial asset must show "... intentional misconduct that resulted in the dissipation of a marital asset during the dissolution proceedings a specific finding of misconduct." Without this finding of misconduct, the court cannot 'add back' the value of the dissipated asset to the distribution to be given to the withdrawing spouse resulting in an unequal distribution of the net marital estate.

In order to avoid a finding of misconduct by a court, what should a spouse do during a divorce case if money is needed from a joint account to pay marital bills or to provide support for the spouse including the hiring of an attorney'? It is always wise to seek the written consent of the other spouse before withdrawing any funds from a joint asset or alternatively, to seek permission of the court in advance. And once the permission is received, the money once withdrawn must be used as indicated. This is not the time to try one's luck at the Florida lottery.

Charles D. Evans v. Talitha Evans, 39 F.L.W. D51 (Fla. First DCA, January 10, 2014)

This December 31, 2013 opinion from the First District Court of Appeal in Tallahassee demonstrates this District's approach to the form of alimony once most feared by husbands in divorce: Permanent periodic alimony. This form of alimony is best characterized by a monthly payment due to the former wife for her life, assuming she does not re-marry or cohabit with another adult in a 'supportive relationship' as defined in Chapter 61.14(1)(b).

Under Florida's new three-tiered alimony scheme [Chapter 61.08(4), F.S.], a rebuttable presumption arises that the historically lesser-earning spouse may be entitled to lifetime alimony when a marriage is deemed 'long-term' under the scheme, that is, of a duration of seventeen years or longer. These three tiers consist of 'short-term' (marriages of less than seven years), 'moderate term' (marriages longer than seven years but less than seventeen years) and 'long term'.

Although the Evans opinion does not state the length of the marriage, the appellate court reversed the trial court's award of permanent periodic alimony to Ms. Evans, citing several factors that may serve as a yardstick in determining if a particular set of facts may merit such an award. In reversing the awards, the appellate court cited the "relative youth of the former wife, her two years' worth of college, and her experience in running a successful ... business [which] is evidence that does not reflect permanent inability on the part of the [former] wife to become self-sustaining." Thus, one arguing against an award of permanent periodic alimony, even in a long-term marriage, should present evidence that the potential recipient could become 'self-sustaining' to a degree required to maintain the lifestyle of the parties' established during the long-term marriage.