Most Frequently Asked Questions
Stephen H. Butter has compiled this page to provide you with answers to frequently asked questions regarding divorce and family law matters. For more information or to schedule a free consultation and case evaluation at (305) 333-7159.
- What factors judges will consider in determining whether alimony is awarded. If so, how much and for how long?
- What is marital liability?
- What is a non-marital liability?
- What is the date the court will choose in deciding whether an asset or liability is marital or non-marital?
- How long does a Florida divorce case take?
- What is a marital asset?
- What is a non-marital asset?
- What factors will the judge consider in deciding equitable distribution of assets and liabilities?
- What Are The Adjustments to Basic Child Support?
- What About Child Support and the Unemployed and Underemployed Person?
- What is Income for Child Support Purposes?
- How Much Will I Receive From Child Support?
- What is Alimony? How Much is it? How Long?
- What Factors Will The Court Consider Regarding Alimony?
What factors judges will consider in determining whether alimony is awarded. If so, how much and for how long?
The following is a complete recitation of Florida Statute 61.08(1)
(1) In a divorce case, formally named a proceeding for dissolution of marriage, the court may grant alimony to either party which alimony may be rehabilitative or permanent in nature. In any award of alimony, the court may order periodic payments or payments in lump sum or both. The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded. In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in sub-section (2) supporting an award or denial of alimony.
(2) 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, the non-marital and the marital assets and liabilities distributed to each.
(e) 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) All sources of income available to either party.
In 1992 the Florida Legislature slightly modified the definition of “income” using the dissolution of marriage statute. Pursuant to Florida Statute 61.046(4):
“Income” means any form of payment to an individual regardless of sources including, but not limited to wages, salary commissions and bonuses, compensation as an independent contractor, worker’s compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government, or any unit of local government. Veterans Administration disability benefits and unemployment compensation, as defined in chapter 443, are excluded from this definition of income except for purposes of establishing an amount of support.
We are not sure if the word “support” will mean alimony. The issue of alimony is really determined on a case by case basis. There are so many variables to consider that many times the issue is not resolved until well into the case. Issues of the effect of cohabitation but not marriage after a dissolution of marriage and it’s effect upon alimony, automatic increases or decreases depending upon change of income of the paying spouse, automatic increases or decreases depending upon the income of the receiving spouse, definite termination dates, are just a few of the variables to be considered. However, I did want you to have this overview of the issue of alimony since it is involved in almost every divorce case in Florida.
What is marital liability?
Florida Statute 61.075(a) defines marital liabilities to include:
(a) Marital liabilities include:
(1) Liabilities incurred during the marriage, individually by either spouse or jointly by them.
What is a non-marital liability?
What is a non-marital liability? Florida Statute 61.075(5)(b) defines non-marital liabilities to include:
1. Liabilities incurred by either party prior to the marriage or in exchange for such liabilities;
What is the date the court will choose in deciding whether an asset or liability is marital or non-marital?
Usually the date you determine marital assets and liabilities is the date of the filing of the petition for dissolution of marriage. However, other dates may be appropriate. Florida Statute 61.075(6) states:
The date for determining marital assets and liabilities and the value of such assets and the amount of such liabilities is the earliest of the date the parties enter into a valid separation agreement such other date as may be expressly established by such agreement or the date of filing of a petition for dissolution of marriage unless the trial judge determines another date is just and equitable under the circumstances.
How long does a Florida divorce case take?
Each case is handled on an individual basis and there is no hard and fast rule as to how long a Florida divorce case will take. The quickest I have ever completed a divorce is four days. My client came in on Monday and he was divorced on Thursday. However that was a very unique case. The circumstances were quite special and everyone agreed to shorten the procedure and to make a presentation to the judge on the fourth day to see if the judge would approve everything. The judge did. On the other hand I have been involved in a case that lasted twenty-two years. The years were not filled with litigation on a monthly basis and I did not represent the client for the entire twenty-two years. However, I mention this to show that it is impossible to give a hard and fast answer as to how long a divorce case will take.
The procedure is to file a petition for dissolution of marriage and have that served upon your spouse. Once he is served he has twenty days in which to file his response and perhaps a counter-petition for dissolution of marriage. When he files a counter-petition for dissolution of marriage you have twenty days to respond to that. After a petition and a response or a petition and response and counter-petition and a response to the counter-petition has been filed the case is technically ready to be able to be set for trial.
However there are a lot of matters that should be attended to before one goes to a trial. What are they? The deposition of your spouse, obtaining and reviewing financial records, taking the deposition of witnesses, retaining a forensic accountant to value the family business and to determine the true cash flow. Retaining appraisers to appraise real estate, classic automobiles, home furnishings, jewelry, asking the court to appoint a psychiatrist to examine the parties and perhaps the children in a “custody battle”. All these things take time and you can see that each case is handled differently. However to give you an answer, the average Florida divorce case takes about six to nine months from beginning to the end.
With reference to how long a divorce case takes I am answering the question as to when the final judgment of dissolution of marriage is entered. After the final judgment of divorce is entered by the court many cases continue on with reference to petitions for modifications of alimony seeking an increase or decrease, modification of child support seeking an increase or decrease, relocation to another county or another state, and, enforcement proceedings via contempt.
What is a marital asset?
Pursuant to Florida Statute 61.075(a) defines marital assets to include:
(a) Marital assets include:
1. Assets acquired during the marriage, individually by either spouse or jointly by them;
2. The enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both;
3. Interspousal gifts during the marriage;
4. All vested and nonvested benefits, rights, and funds, accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation and insurance plans and programs; and
5. All real property held by the parties as tenants by the entireties. Whether acquired prior to or during the marriage; shall be presumed to be a marital asset. If in any case, a party makes a claim to the contrary the burden of proof shall be on the party asserting the claim for a special equity.
There are very challenging aspects to determine valuations and the like. Valuation is an expensive procedure that requires expert testimony of accountants, business valuation experts, appraisals, pension consultants, and the like. Hopefully we can settle the issues.
What is a non-marital asset?
What is a non-marital asset? Florida Statute 61.075(5)(b) defines non-marital assets to include:
1. Assets acquired bvy either party prior to the marriage, and assets acquired and in exchange for such assets.
2. Assets acquired separately by either party by non-interspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;
3. All income derived from non-marital assets during the marriage unless the income was treated, used or relied upon by the parties as a marital asset; and
4. Assets excluded from marital assets by valid written agreement of the parties, and assets acquired in exchange for such assets.
What factors will the judge consider in deciding equitable distribution of assets and liabilities?
Pursuant to Florida Statute 61.075(1) in any proceeding for dissolution of marriage, the court shall set apart to each spouse that spouse’s non-marital assets and liabilities and shall distribute between the parties the marital assets and liabilities in such proportion as are equitable. The statute goes on to define what is a marital asset and what is a non-marital asset. However, Florida Statute 61.075(1)(a) list some factors that the court can consider in making an equitable distribution award. Those factors are as follows:
(a) The contribution to a 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) An interruption of 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 the business, corporation or professional practice, intact and free from any claim or interference by the other p arty.
(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 non-marital assets of the parties.
(h) The desirability of retaining the marital home as a residence of any dependent child of the marriage, or any other party, when it would be equitable to do so, it is the best interest of that child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of that child and the 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 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 and other party exclusive use and possession of the marital home.
(i) Any other factors necessary to do equity and justice between the parties
Of course, each of the aforementioned factors do not apply to every single case. Some factors are more important and others are less important depending on the facts of a particular case.
What Are The Adjustments to Basic Child Support?
The trial court can adjust the minimum amount of child support. Florida Statute 61.30(10) allows the court to consider certain things with reference to making an adjustment in child support. They are:
(a) Extraordinary medical, psychological, educational, or dental expenses.
(b) Independent income of the child.
(c) The payment of both child support and spousal support to the obligee or the payment of support for a parent which regularly has been paid and for which there is a demonstrated need.
(d) Seasonal variations in one or both parents’ incomes or expenses. (e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the secondary residential parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the primary residential parent, or the refusal of the secondary residential parent to become involved in the activities of the child, or giving due consideration to the primary residential parent’s homemaking services.
(h) Total available assets of the obligee, obligor and the child.
(i) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt. Such expense or debt may include, but is not limited to, a reasonable and necessary expense or debt which the parties jointly incurred during the marriage.
You can see that the Florida legislature has incorporated many sources of revenue to determine gross income. However, there may be things to litigate such as rental income which is gross receipts minus ordinary and necessary expenses required to produce the income. What is “ordinary and necessary” expenses differs on a case by case basis. The exact gross income in your case will be developed as we go along.
What About Child Support and the Unemployed and Underemployed Person?
After practicing family law for five decades, I have heard hundreds of stories wherein someone says that they are going to quit their job or their spouse is going to quit a job or he or she is going to take a new job at less pay. The legislature has addressed that issue in Florida Statute 61.30(2)(b). The concept of the unemployed or underemployed spouse has been resolved wherein the judge has the authority to impute the ability to pay a certain amount of money to the unemployed or underemployed spouse. The statute reads:
61.30(2)(b) income shall be imputed to an unemployed or underemployed parent when such employment or underemployment is found to be voluntary on that parent’s part, absent physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications and prevailing earnings level in the community; however, the court may refuse to impute income to a primary residential parent if the court finds it necessary for the parent to stay home with the child.
What is Income for Child Support Purposes?
The child support guidelines do not apply to every case but they do apply to most of them. Pursuant to Florida Statute 61.30(1)(b)2 the child support guidelines applies to parents with a combined net income of $100,800.00 per year or less. The next issue to be determined is what constitutes “income” to develop gross income from which we will eventually determine net income. Pursuant to Florida Statute 61.30(2) income shall be determined for the obligor and for the obligee as follows:
(a) Gross income shall include, but is not limited to, the following items:
- Salary or wages.
- Bonuses, commissions, allowances, overtime, tips, and other similar payments.
- Business income from sources such as self-employment, partnership, close corporations, and independent “Business income” means gross receipts minus ordinary and necessary expenses required to produce income.
- Disability Benefits.
- Worker’s compensation.
- Unemployment compensation.
- Pension, retirement, or annuity payments.
- Social security benefits.
- Spousal support received from a previous marriage.
- Interest and dividends.
- Rental income, which is gross receipts minus ordinary and necessary expenses required to produce the income.
- Income from royalties, trusts, or estates.
- Reimbursed expenses or in kind payments to the extent that they reduce living expenses.
- Gains derived from dealings in property, unless the gain is non-recurring.
How Much Will I Receive From Child Support?
Many cases involve the issue of payment of periodic child support. Our Florida legislature has passed Florida Statute 61.30 which is commonly referred to as the child support guidelines. The legislature has established guidelines to help lawyers and their clients resolve the issue of the amount of child support.
Pursuant to Florida Statute 61.30(1)(a), the child support guideline establishes the amount of child support the trial judge must order as child support. However, the judge may order a payment of child support in an amount different from the guideline amount. In order to do this, the trial judge must specifically make a written finding in the child support court order or make a specific finding in the transcript of the child support court proceedings explaining why ordering the payment of the guideline amount would be unjust or inappropriate. Most often the child support guideline amount is ordered to be paid.
What is Alimony? How Much is it? How Long?
The issue of alimony may be a matter that has to be resolved in your case. The issue can be resolved through a negotiated settlement or the trial court judge will decide the issue. After five decades of practicing matrimonial law, a settlement of an issue is often times better than litigated results. There are three issues involved in alimony: entitlement? How much? How long? To better understand the concepts of alimony, I refer you to Florida Statute 61.08 which is the alimony statute.
Basically there are six types of alimony: temporary alimony, rehabilitative alimony, permanent alimony, durational alimony, bridge-the-gap alimony, and lump sum alimony.
Temporary alimony is alimony that is paid from the filing of the petition of dissolution of marriage to the final judgment of dissolution of marriage. It is reflected by a court order which memorializes how much alimony is to be paid and whether it is to be paid weekly or monthly as well as whether it is to be paid directly to a spouse or through the Clerk of the Circuit Court. There may be some tax aspects to alimony that is memorialized in a court order. You may want to consult your tax advisor for that information. The basic concepts are that whether or not alimony is paid or not are governed by Florida Statute 61.08 with an overriding concept of one’s need for economic support and the other spouse’s ability to pay it. For example the court could order $1,000 per month from the date of filing the petition for dissolution of marriage seeking alimony to the entry of the final judgment of dissolution of marriage.
What Factors Will The Court Consider Regarding Alimony?
The factors that the court may consider in awarding attorney’s fees are, but are not necessarily limited to, the following:
a. The novelty of this particular case; and/or
b. The difficulty of this particular case; and/or
c. The skill required to present the case; and/or
d. Stephen H. Butter, P.A.’s previous experience in family law practice; and/or
e. The extent of the opposition; and/or
f. Whether or not the employment caused loss of other profitable employment; and/or
g. The controversy involved; and/or
h. The nature and extent of the trial preparation; and/or
i. The attendant responsibility and benefit resulting to the client.
Stephen H. Butter has practiced law for more than fifty years, authored three books, has been published in the Florida Bar Journal, and was an adjunct professor of law at St. Thomas Aquinas Law School. He invites inquiries and telephone calls on his personal cellphone which is 395-333-7159.