Can a Former Wife still get alimony if she makes more money?

In Castleberry v. Castleberry, 29 So.3d 1207 (Fla. 1st DCA 2010), the trial court said that an alimony award was not justified if the Former Wife makes money than the Former Husband.  However, the Court must have been suspicious of the Former Husband's ability to earn money after the case because it stated "nominal alimony" could be awarded.  This means if the trial court awarded $1.00 a month in alimony, it could be increased if the Former Husband decides to make more money after the case was over.  If the Court awarded "$0" in alimony, it couldn't later give alimony if the Husband made more money.   This case is important for "semi-retired" people that are trying to calculate a budget for retirement.  It is a bargaining chip in divorce cases to give more assets in the initial divorce if alimony can be waived.  Each case is different and you need a professional to advise you.

TRIAL COURT ABUSED ITS DISCRETION IN ALIMONY MODIFICATION CASE TO AWARD MORE THAN NOMINAL ALIMONY TO WIFE WHO NOW EARNS MORE THAN HUSBAND.

The Husband appealed from an order that reduced but did not terminate his alimony obligation even though evidence demonstrated that Wife earned more income than he. The District Court held: "Because the undisputed evidence in the record is that… former wife, now earns more income that the former husband and there is no justification in the record for a continued alimony award under the circumstances, we agree with the former husband that the trial court abused its discretion in awarding more than a nominal amount of alimony."

Castleberry v. Castleberry, 29 So.3d 1207 (Fla. 1st DCA 2010)

Can I get alimony if my husband stops working during the divorce?

In the case of Buoniconti v. Buoniconti, 36 So.3d 154 (Fla. 2nd DCA 2010), the court awarded lump sum alimony when the Husband "retired" and was only making a minimal amount of money at the time of the divorce.  Prior to the dissolution hearing, husband and wife resolved the majority of issues between them. The trial court was asked to consider only the wife's claim for permanent and retroactive alimony and her claim that the liquid marital assets should be distributed unequally due to the husband's dissipation of certain marital assets during the marriage.  

The trial court awarded the wife permanent alimony payable as lump sum as well as retroactive alimony. It also found that the husband had dissipated marital assets, and it charged those dissipated assets to the Husband in its equitable distribution scheme. The husband first contended that the trial court abused its discretion by awarding the wife $261,240 in permanent alimony payable as a lump sum. The argument has two components: first, whether the wife was entitled to permanent alimony, payable as a lump sum; and second, whether the amount of the award was supported by evidence.

With regard to the Husband's argument that the award was "unfair," the District Court held:

1. "At oral argument, counsel for the Husband argued that it was 'unfair' to award permanent alimony as a lump sum because the Wife would get to keep the entire award even if she chooses to remarry or cohabit."

2. "The Husband cannot be heard to complain simply because his chosen financial strategy did not produce the desired result. The Husband's course of conduct forced the trial court to choose between awarding the Wife nominal permanent periodic alimony or a reasonable amount of permanent alimony payable as a lump sum. The fact that the Husband's apparent strategy to avoid paying permanent alimony backfired is the risk he took when he chose that course of action. "

What if my IRA value goes down while my divorce is pending?

     This case exams the problems judge's face when establishing value of retirement accounts at the time of trial.  In the case of Lilly v. Lilly, 35 So.3d 1022 (Fla. 5th DCA 2010), the court stated that a spouse must prove the value of an asset beyond a mere assertion in a pleading.

TRIAL COURT ERRED BY AMENDING FINAL JUDGMENT TO CHANGE VALUATION DATE AND VALUES OF RETIREMENT ACCOUNTS TO REFLECT A DOWNTURN IN THE ECONOMY BASED SOLELY ON HUSBAND'S BARE ASSERTIONS IN REHEARING MOTION.

In the Final Judgment the lower court awarded the Wife one-half of the marital portion of three retirement accounts, valued as of the trial date based on the evidence presented. But in the Amended Final Judgment, the court valued the accounts as of the date the Final Judgment was entered, to reflect a downturn in the economy as asserted by the husband in his rehearing motion. The District Court reversed:

1. "The court erred by changing the valuation date and values without any evidentiary basis."

2. "Although section 61.075(7), Florida Statutes, gives the trial court discretion to pick an equitable date to value assets, section 61.075(3) requires the trial court to establish a value based on competent, substantial evidence."

3. "The wife correctly argues that the husband's bare assertions in a motion for rehearing were not evidence. Although the value of the assets may well have dropped, as the husband asserted, he failed to present any evidence to support this assertion or the court's findings."

            It is important to have experience legal representation so values can be properly proved at trial.

Are oral contracts for a sperm donor enforceable?

In the case of Janssen v. Alicea, 30 So.3d 680 (Fla. 3rd DCA 2010), the Court states that a judge has to decide whether the father was a "sperm donor" with no rights or a parent with all rights.

            The Father and the Mother, who had been close friends, agreed to have a child through artificial insemination. The Father donated the sperm used for the artificial insemination and the Mother gave birth to the child. The child's birth certificate listed the names of both the Mother and the Father. Two years later, the Mother moved to California with the child and the Father filed an action for paternity. The Father alleged that he and mother together planned for and purposely conceived the child intending that they both would act as the child's parents. The Father also alleged that he played an active role during the pregnancy and lifetime of the child (then, two years). The Mother alleged that Father was simply a sperm donor and a part of the child's life at her discretion. The Mother asserted that section 742.14, Florida Statutes (2008) barred the action because the Father was simply a sperm donor. The Father argued that the parties were a commissioning couple and not subject to that statute. The trial court entered a summary judgment for the Mother. The District Court held:

            1. "Section 742.14 provides: 'The donor of any egg, sperm, or pre-embryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement . . . , shall relinquish all maternal or paternal rights and obligations with respect to the donation of the resulting children.' "

2. "Section 742.13, Florida Statutes (2008), defines 'a commissioning couple' as 'the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parties.'"

3. "Here, the parties do not have a written contract governing their relationship. In fact, the father alleged an oral agreement to co-parent the child."

4. "We find that it is possible for the court to conclude that the parties are a commissioning couple. However, there are genuine issues of material fact that cannot be determined on summary judgment. Accordingly, we reverse final summary judgment, and remand for further proceedings consistent with this opinion."

Father has visitation rights even though Mother married to someone else when child is born

In the case of L.J. v. A.S., 25 So.3d 1284 (Fla. 2nd DCA 2010), the court granted a biological father the right to get time-sharing with his child, even though the mother was married to someone else at the time of birth.

The father, L.J., is the undisputed biological father of a child born to the mother, A.S., while she was married to M.A., a foreign national. The mother and M.A. were married on October 22, 2002, and the mother instituted divorce proceedings less than two months thereafter. While the divorce proceedings were pending, the mother and L.J. had intimate relations that resulted in the conception of the child at issue. Thereafter, L.J. was regularly involved in the child's life, exercised visitation and paid child support. The father, L.J., regularly attempted to obtain a paternity determination but met with dismissals of his actions for lack of standing because the child had been born during the mother's marriage to another man and the mother's refusal to institute an action to terminate or disavow the legal father's rights despite the fact that the legal father was, according to the mother, "no where to be found." 

The District Court reversed:

1. "We agree with the circuit court that L.J. has suffered from 'truly an unfortunate chain of events,' so much so that to deny him an opportunity to succeed in this endeavor will certainly create a manifest injustice both of him and his child."

2. "The child at issue here has a biological father willing, able, indeed eager, to parent and support his offspring; a legal father who apparently is not; and a mother who apparently wishes to deprive the child of a real father by declining to institute proceedings to divest her ex-husband of his legal parental rights."

3. "[W]e conclude the circuit court erred in dismissing L.J.'s petition with prejudice based on lack of standing as a matter of law and without a hearing to afford L.J. the opportunity to establish his standing…. Give what we understand to be the background of this case, that should be a first hurdle easily overcome. Once his standing is established, the substantive issues of paternity, custody and other relief can be decided."