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Alimony Will No Longer Be Tax Deductible to the Payer in 2019

July 20, 2018 by  
Filed under Uncategorized

According to the Tax Cuts and Jobs Act, in divorces entered or modified after Dec. 31, 2018, alimony will no longer be deductible for the payer, and taxes won’t need to be paid on it by the recipient. This is a change from the long standing position that the payer would not pay taxes on the alimony they paid and the recipient would have to pay the taxes on the alimony they received.

Alimony Terminated Retroactively

August 10, 2017 by  
Filed under Uncategorized

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Sometimes a change in circumstances warrants the reduction or termination of alimony.  In the case of Holli Poe Dennis v. Michael Dennis, the First District Court of Appeals for the State of Florida reversed a trial court decision that did not make the termination of alimony retroactive to the date that the Former Wife started receiving a portion of the Former Husband’s military retirement benefits.  The Court reasoned that alimony can be modified retroactively to the date of the filing of a petition for modification, and that where alimony is to be modified there is in fact a presumption that the modification should go to the date of the filing of the supplemental petition.   On the facts before it, the Court held that modification was warranted  retroactive to the date that the Wife started receiving the retirement payments.

If you need to talk to an attorney to discuss if alimony could be modified in your case based upon a substantial change in circumstances contact us for a consultation so we can evaluate your specific situation.

Alimony Reduced Where Recipient Wife Voluntarily Cut Expenses

April 21, 2017 by  
Filed under Uncategorized

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Alimony can be reduced if the receiving party voluntarily reduces their expenses.  Courts have considered some voluntary changes in circumstances, such as retirement, as permitting modification of alimony depending upon the totality of the circumstances. Also, courts have reduced an alimony obligation where the substantial change in circumstances has been a reduction of a receiving spouse’s expenses.

 

In the case of Regan v. Regan, the Fourth District Court of Appeals for the State of Florida ruled that the trial court did not abuse its discretion by finding a voluntary change in circumstances had occurred and reducing alimony to the former wife from $ 9,000 a month, which was agreed to in a mediated settlement agreement, to $ 7,800 a month because the former wife significantly cut her expenses by selling the marital home, moving to a different state, and purchasing a smaller home.

 

If you have questions about a modification of an alimony obligation in your case contact us to schedule a consultation.

Rebuttable Presumption Against Permanent Alimony Not Met

October 21, 2016 by  
Filed under Uncategorized

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In a long term marriage of 17 years or more, where alimony is otherwise appropriate, there is a rebuttable presumption in favor of permanent alimony. See § 61.08(4), Fla. Stat. (2014); Dickson v. Dickson, 41 Fla. L. Weekly D1807, 1808 (Fla. 4th DCA Aug. 3, 2016)(“Our courts recognize that with respect to long-term marriages, there is a rebuttable presumption in favor of permanent alimony.”).

In Berger v. Berger, the 4th District Court of Appeals for the State of Florida ruled that the trial court erred in awarding the wife durational alimony rather than permanent alimony in a long-term marriage where the trial court had erroneously failed to find that a rebuttable presumption existed in favor of permanent alimony and its findings were insufficient to rebut the presumption in favor of permanent alimony.

Ruling That Modification of Alimony Had Been Waived In Marital Settlement Agreement Reversed

September 20, 2016 by  
Filed under Uncategorized

Alimony Modification And Waiver

Under Florida law the ability to modify alimony can be waived in a marital settlement agreement.  However,  in the Fourth District Court of Appeals for the State of Florida case of Rosenthal v. Rosenthal the marital settlement agreement did not contain explicit language waiving the parties’ right to modify alimony.  The Agreement’s alimony provision did not reference modification of alimony while the Agreement’s child support section did reference the modification of child support.  There was also a general provision in the Marital Settlement Agreement allowing for the modification of the Agreement.

The Wife argued that the silence of the alimony provision as to the right to seek modification compared with the modification language of the child support provision reflected an intentional waiver of the right to modify alimony and cited to precedent where an alimony provision was found to be non-modifiable  where it did not contain specific language waiving the right to modify.

The Fourth District Court of Appeals rejected the Wife’s argument that the silence of the alimony section of the Agreement as to modification was dispositive of the issue given that there was a general provision allowing for the modification of the Agreement.  The Appellate Court also rejected the Wife’s argument that there was sufficient similarity between the case before it and the precedent the Wife cited to as in the case the Wife cited to the Court had heard parole evidence in addition to just reviewing the agreement to come to its determination that the parties sought to waive the modification of alimony.

While the right to modify alimony can be waived explicitly and there can be an implied waiver under certain circumstances the Rosenthal case makes it clear that it is risky to rely on an implied waiver of the right to seek modification.  If the Marital Settlement Agreement before the court had just stated clearly that there was a waiver of the right to seek modification of alimony the Wife would have gotten what she wanted, no modification of her alimony, and avoided the costs at the trial court and appellate level associated with the issue.

 

Most Types Of Alimony Can Be Modified, Even To Zero

August 19, 2016 by  
Filed under Uncategorized

Divorce Lawyer Alimony Modification

Alimony reduced to zero.  Most types of alimony available under Florida law can be modified where there has been a substantial change in circumstances, like a substantial reduction in the income of the party that was paying alimony since the time of the last judgment.  It the type of alimony awarded in your case is modifiable and if warranted by the circumstances alimony can even be reduced to zero.  In such circumstances a court can still reserve jurisdiction so as to readdress alimony if there is another substantial change in circumstances in the future.

In Donovan v. Donovan, the First District Court of Appeals for the State of Florida upheld a trial court’s decision to reduce alimony to zero based upon a substantial reduction in the income of the former husband.  The trial court order also stated that the court reserved jurisdiction to enter such other orders as may be necessary so it was not necessary for the court to maintain nominal alimony so that the issue of alimony could be readdressed in the future based upon another change in circumstances.

If you have questions about alimony or the modification of alimony in your case please contact one of our lawyers to schedule a consultation.

ALIMONY REDUCED OR TERMINATE WHEN LIVE WITH SOMEONE WHO SUPPORTS THEM

June 30, 2016 by  
Filed under Uncategorized

 

Modification of Alimony

A trial court may reduce or terminate an alimony award when a former spouse enters into a supportive relationship with an individual with whom they reside. §61.14(1)(b), Fla. Stat. (2015). Section 61.14, Florida Statutes (2015), sets out circumstances that a trial court should consider deciding whether a supportive relationship exists.  The burden of proof is on the party seeking the modification of alimony.  The listed factors are:

a. The extent to which the obligee and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as “my husband” or “my wife,” or otherwise conducting themselves in a manner that evidences a permanent supportive relationship.
b. The period of time that the obligee has resided with the other person in a permanent place of abode.
c. The extent to which the obligee and the other person have pooled their assets or income or otherwise exhibited financial interdependence.
d. The extent to which the obligee or the other person has supported the other, in whole or in part.
e. The extent to which the obligee or the other person has performed valuable services for the other.
f. The extent to which the obligee or the other person has performed valuable services for the other’s company or employer.
g. Whether the obligee and the other person have worked together to create or enhance anything of value.
h. Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property.
i. Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support.
j. Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support.
k. Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so.

 

For example, in the case of Martin v. Martin, the Fifth District Court of Appeals for the State of Florida was faced with a trial court decision which did not reduce or terminate alimony despite the record reflecting that the couple had held themselves out as Husband and Wife despite not being married and that they were in fact in a supportive relationship.  Accordingly, the Court of Appeals reversed the trial court’s decisions and instructed that the trial court decide whether alimony should be terminated or reduced.

If alimony was awarded in your case and you have questions about the modification of alimony or the termination of alimony contact one of our lawyers for a consultation so you know your rights.

Alimony/Support Award Must Include Proper Factual Findings

May 25, 2016 by  
Filed under Uncategorized

Alimony Award

Where an alimony award is not based on the statutory factors set forth in Florida Statute Section 61.08(2), or there are not sufficient factual findings to support those factors it may be reversed on appeal.

Florida Statute Section 61.08(2) requires a factual finding that the party seeking alimony needs support, to maintain the same lifestyle as was enjoyed during the marriage, and the party that is requested to pay the alimony has the ability to pay it.  The statute requires that the following factors are considered;  standard of living, length of marriage, financial resources, earning ability, contributions to the marriage, responsibilities to children, tax consequences of an award, all sources of income, and other factors necessary to be fair and just.  A final judgment awarding alimony must make specific factual findings in relation to the factors set forth in the statute.

In Watford v. Watford, the Fourth District Court of Appeals for the State of Florida reversed an alimony award which did not meet these requirements.  The judgment did not contain specific factual findings in support of the statutorily specified alimony factors, there was insufficient evidence to support the income upon which the alimony calculation was based, and because the trial court mistakenly used gross income rather than net income to calculate alimony.

You need a lawyer on your side who understands what evidence to present to the court in support of or in opposition to an alimony claim and who can identify any errors in a ruling that may lead to its reversal.

If you have a question concerning alimony or the appeal of an alimony award contact us to schedule a consultation with one of our lawyers.

Should Not Have To Work 7 Days A Week For Alimony

April 22, 2016 by  
Filed under Uncategorized

Equitable Distribution and Alimony Decision Reversed

In alimony calculation news, in Nolan v. Nolan, the First District Court of Appeals ruled that a former husband should not have to work 7 days a week for the purposes of alimony.  The Court reasoned that while the trial court had stated that the former husband should not have to work seven days a week it had mistakenly used an income figure based upon him having to do so for the purposes of calculating his alimony obligation.  Because the trial court’s equitable distribution schedule was being reversed the appellate court could have left the alimony issue alone, since a change in equitable distribution would have necessitated a change in alimony, as equitable distribution is always calculated first and changes the circumstances of the parties in terms of the potential need and ability to pay alimony.  Regardless the appellate court chose to address the issue.

Alimony is based upon the length of a marriage and the parties need and ability to pay alimony.  In this case the former husband presented evidence to the court that while he had historically worked 7 days a week, holidays, and overtime, during the marriage he was no longer being offered the shifts to do so and his doctors had told him he needed to cut back on his work such that he had been working less since separation.  The trial court rejected the former husband’s claim but still acknowledged he should not have to work every day of the week.  The First District Court of Appeals interpreted this as a finding by the trial court that the former husband could not earn as much as he had when he was working 7 days a week and accordingly reversed the portion of the judgment that calculated alimony based on his income while working 7 days a week.

Veto Alimony And Equal Time-Sharing Custody Presumption Bill

April 18, 2016 by  
Filed under Uncategorized

Alimony and Custody Bill Vetoed

Photo Credit Meredyth Hope Hall

On Friday Governor Rick Scott vetoed the alimony reform and equal time-sharing presumption bill that had passed the Florida Legislature.  Gov. Scott stated that he had vetoed the bill because he did not think the initial presumption of equal time-sharing for both parents would be in the best interests of children.  Presently there is no presumption of equal time-sharing or custody and the courts use a list of statutory factors and the best interests of the children in determining time-sharing between parents.

Governor Scott did not comment on the alimony reform sections of the bill which would have ended permanent alimony and created guidelines for it based upon the parties incomes and the length of the marriage.  Because the legislature had decided to put both the alimony reform measures and equal time-sharing presumption changes in the same bill the alimony reform law can not pass alone.  It is unclear if the Governor would have vetoed the alimony portions of the bill if they had arrived on his desk without the time-sharing portions of the bill.

Gov. Scott experienced the divorce of his own parents.  He has also reported that his daughter is in the process of a divorce.  Gov. Scott’s own personal experiences may have shaped his views on the issues.

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Disclaimer: The Law Offices of Robert Hanreck, P.A. is based in Miami , Florida and serves clients throughout the State including Miami-Dade and Broward counties. We are licensed to practice law in the State of Florida. This website is intended for informational purposes only and is not meant to constitute legal advice, or solicit clients outside of the State of Florida.