- Created on Wednesday, 29 October 2014 11:41
- Written by Lori Barkus
As the political season heats up, so too has the debate over alimony reform. As you may recall, incumbent Gov. Rick Scott vetoed an alimony reform bill passed by the Florida Legislature in 2013 because he had an issue with the part that made it retroactive.
In 2014, Rep. Ritch Workman and Senator Kelli Stargel who sponsored the previous year’s alimony reform legislation decided not to bring an alimony reform bill before the legislature – opting to focus instead on tax cuts.
As gubernatorial candidates Scott and his opponent Charlie Crist battle it out over education, same-sex marriage and job creation, those who favor alimony reform are asking where they stand on the issue
Recently, the Sun-Sentinel solicited questions from readers to be answered by the candidates. Jeff Dombeck asked: “What is your opinion of Gov. Scott vetoing the bill that would end permanent alimony?”
His response was as follows:
“These cases are all different and unique. That’s why we have judges, which is important. I want to talk about appointing judges. But the fact that you have alimony, it’s brought about to make sure the spouse, whichever one needs help, gets it. It’s a fairness issue. How it’s done in each individual case needs to be decided by individual judges, not by the governor, not by the Legislature.”
What Crist fails to understand is that in this case more isn’t always better. It doesn’t matter how many judges there are, the issue is that there are no guidelines for them to follow. Adding more judges will simply mean more inconsistent outcomes.
It’s also a financial burden which in some cases can even force ex-spouses into bankruptcy, keep them from retiring or forcing them to spend tens of thousands of dollars in fees on modifications. It is not unheard of for an alimony modification to cost $20,000, $50,000 or even $100,000. These sums are financially crippling to an already divorced couple. One of the main reasons these cases are so expensive is because of the lack of guidelines. Such uncertainty means neither side knows what the outcome will be, so they end up going to trial to get the highest or lowest alimony payment. This comes at a cost that, in many cases, neither of the parties can recover from financially.
- Created on Monday, 27 October 2014 08:18
- Written by Lori Barkus
Sometimes, when doing research, I run into some interesting cases that turn alimony on its head. Recently, I came across a case in which a Florida appellate court ruled that a woman no longer could receive alimony because she was cohabitating with someone … in a jail cell.
The case, Patricia Craissati v. Andrew Craissati (No. 4D07-1506) involved a couple divorced in 2001 who agreed that the former husband would provide the former wife with eight years of alimony with the understanding that he could stop paying if she either remarried or cohabitated with another person, other than their child.
Cohabitation was defined as living with another person for three consecutive months or more. After the final judgment, in 2005, the wife was sentenced to nine years in prison in connection with a criminal conviction for driving under the influence, leaving the scene of an accident and causing serious bodily injury.
The husband then filed a petition for modification of alimony based on the fact that his ex-wife was cohabitating with her cellmate. The trial court found that “to construe the term ‘another person’ as set forth in … the Marital Settlement Agreement (MSA) to include a ‘prison inmate’ would be an absurd result, unthinkably bizarre and at odds with any reasonable interpretation intended by the agreement drafters.”
At the same time, however, the trial court also found that it would be similarly absurd to require the ex-husband to continue paying the amount of alimony he had agreed to pay in the MSA while she was in prison and ordered a hearing to determine the amount reduced based on her needs as a prison inmate.
- Created on Monday, 20 October 2014 09:26
- Written by Lori Barkus
Florida’s Fourth District Court of Appeal recently was asked to rule on whether a cause of action for negligent transmission of a sexually transmissible disease might be asserted upon common law negligence principles.
The case Kohl v. Kohl (Case No. 4D13-1194) involves a woman who, in 2009, filed a two-count petition seeking to dissolve her marriage and to extract damages from her soon-to-be ex-husband for “assault by way of transmission” of the human papillomavirus (HPV). The trial court severed the claim for damages and entered an amended final judgment of dissolution of marriage.
The former wife filed a second amended complaint attempting to state a cause of action for negligent transmission of a sexually transmitted disease based on the former husband’s failure to warn her during their marriage that he had HPV. She learned she had contracted the disease during a routine pap smear. The former wife claimed that since she had undergone a hysterectomy, "he knew or should have known he had been exposed to HPV,” the complaint alleged. However, the appellate court noted that hysterectomies are performed for a number of reasons including tumors, cysts, endometriosis, cancer, etc.
The former wife also alleged in her complaint that her ex had engaged in extra-marital affairs during the course of their marriage and that he knew, or should have known, he had been exposed to HPV. However, there were no allegations that he had been diagnosed with the virus or that he had experienced any symptoms.
- Created on Monday, 13 October 2014 08:23
- Written by Lori Barkus
Many people believe that alimony stops when the former spouse receiving it remarries. But that’s not always the case, as evidenced by a recent ruling coming out of Florida’s Second District Court of Appeal.
In the case of Herbst v. Herbst (Case No 2D13-2745), the couple entered into a marital settlement agreement (MSA) that required the ex-husband to pay non-modifiable alimony to his former wife for the rest of her life. The MSA was incorporated into the final judgment of dissolution, which was rendered in August 2009. However, about a year later, the former wife remarried and the former husband petitioned the court to terminate his obligation and asked for the return of alimony paid after the date of his ex’s remarriage.
The trial court listened to both sides, which it found to be “self-serving” and instead based its decision on a legal construction of the MSA determining that while the alimony was intended to be permanent, section 61.08(8) of Florida statutes provides for the termination of permanent alimony “upon the death of either party or upon the remarriage of the party receiving alimony.”
Although the MSA stated the ex-wife would receive non-modifiable alimony for life, the court concluded that it did not address termination and therefore it was governed by section 61.08(8), which calls for alimony to be terminated upon remarriage.
During another court hearing, the court found that the husband overpaid a little more than $50,000 in alimony. However, he awarded $26,000 in attorney’s fees and costs to the former wife. He ordered the former husband to pay $7,500 within 30 days and reserved jurisdiction to address payment of the remaining amount. He later entered a final order setting off the remaining $18,500 in attorney’s fees and costs against the former husband’s award of $50,207.42 for alimony overpayment.
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