Four key areas of contention in divorce

Fighting smallWhen it comes to divorce, the most common areas of contention are: equitable distribution, alimony, child support, and attorney’s fees. All four are addressed in a recent case before the First District Court of Appeal.

In Ballard v. Ballard, the appellate court found that the trial court abused its discretion by including within the equitable distribution scheme certain furniture that belonged to the husband before the couple was married. The court also found that the trial court abused its discretion by including $42,012 from a credit union account that had been “significantly diminished” by the time the divorce case had gone to trial, without finding that the husband had used the money improperly.

In fact, the husband had testified that he had used about half of the money from that account to pay his attorney. The appellate court noted that money used during divorce proceedings to pay for attorney’s fees should not be included in an equitable distribution scheme unless there is evidence that one spouse intentionally took the money for his or her own benefit for a purpose unrelated to the marriage, at which point the trial court would have to find intentional misconduct.

When a couple marries what’s been his and hers’ may become theirs. But when they decide to split, couples often go back to the idea of what was mine before we tied the knot remains mine, and mine alone again, once the knot is untied.

Florida has statutes dealing with equitable distribution of marital property. They serve as guidelines for the court to follow when determining who gets what. In this case, the appellate court ruled that the lower court abused its discretion with regard to equitable distribution as it related to amounts paid toward the mortgage on a non-marital property. When marital assets are used to reduce a mortgage, the increase in equity becomes a marital asset.

Read more: Four key areas of contention in divorce

Divorce and religion: Who gets to decide?

BibleDuring a marriage many parents often agree to raise their children in a single religion, or they may agree to teach their children about both parents’ religion in a positive manner. But what happens if the couple divorces?

There have been a number of rulings on the issue as courts must not only decide what’s in the best interest of the child, but also must taken into consideration the parents’ First Amendment Right to freedom of religion. When making such a decision the courts have to strike a balance between these two interests.

The First District Court of Appeal recently addressed the matter in Pierson v. Pierson. During the marriage the couple had three children, all of whom were raised in the mother’s religion of Catholicism. After the couple separated, the father became a Jehovah’s Witness.

During the hearing on the mother’s petition for divorce, the director of family ministries at the mother’s church testified that the couple’s oldest son had told his Sunday School teachers and other students during one class that the music they were listening to was wrong, that priests were bad, the Bible they were using was wrong and that there was no Heaven.

Read more: Divorce and religion: Who gets to decide?

Court says no to permanent alimony despite long-term marriage

Gavel 2Florida's appellate courts have been making some noteworthy rulings on alimony, child relocation and due process.

In Fichtel v. Fichtel, the Fourth District Court of Appeal upheld the lower court’s ruling that despite the fact the parties had been in a long-term marriage (19 years), she was not entitled to permanent alimony and the trial court was correct to award her durational alimony. However, the court did note that the lower court failed to make “specific findings of fact” to support its decision that the ex-husband was responsible for just 50 percent of the former wife’s attorneys fees.

“While the trial court may have had a legitimate rationale in mind for the fifty percent attorney’s fee award, it did not address the substantial disparity between the parties’ incomes or provide specific factual findings justifying the amount of the award,” the court noted.

The appellate court reversed the trial court’s fee order with directions to reconsider fees and make findings of fact sufficient to permit review of the ruling.

In Rolison v. Rolison, the First District Court of Appeal agreed with the lower court’s ruling that found Florida’s relocation statute did not apply in this case because the mother moved to another state before the child’s father filed for dissolution of marriage.

Read more: Court says no to permanent alimony despite long-term marriage

Gay marriage ban expected to go to Fla. Supreme Court

Gay marriage couplesThe Daily Business Review recently reported that the race is on to challenge Florida's gay marriage ban in the state's highest court. Given a series of recent court rulings that favor same sex marriage (and divorce), it's likely such a challenge will happen soon.

The DBR article, in which I am quoted, points to several cases currently before the courts. There's one before the Fourth District Court of Appeal filed in May by a Florida Atlantic University student to recognize his same-sex marriage. He argues that FAU denied him in-state tuition as the spouse of a longtime Florida resident because the university doesn't recognize their marriage.

I have previously addressed some of the other cases mentioned in the DBR article, including two recent cases out of Monroe and Miami-Dade counties, that challenge the state's ban on same-sex marriage.

As I told the DBR, there are several good reasons to resolve this issue quickly. Because the law in Florida is unclear, a lot of attorneys are unclear on how to advise clients who want to get married or divorced.

Click here to read the entire article.

 

 

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