Articles Posted in Alimony

That dreaded word in a divorce:  Alimony. Alimony is determined by the court after looking at one party’s actual need versus one party’s ability to pay. After equitable distribution is determined, the court reviews what money is left over, if anything, and considers the parties’ circumstances to come up with a fair award.  Some questions to answer:

  • Length of the marriage
  • Standard of living the parties are accustomed to

In some marriages, a spouse’s parents may supplement the family income with monetary gifts, which may be an issue later on if the husband and wife divorce.  Can one spouse argue that the other spouse will have higher income due to the monetary gifts from family members thereby raising alimony and child support payments?  According to Florida law, it depends.

SupportIn Oluwek v. Oluwek, 2 So.3d 1038 (Fla. 2ndDCA 2009), Jonathan Oluwek, the husband, appealed an amended final judgment of dissolution of his marriage to Linda Oluwek, the wife.  The trial court imputed $1500 per month contributed regularly by the husband’s parents to husband for alimony and child support.  The husband argued the trial court erroneously imputed the $1500 per month as income to the husband.  The record indicated his parents made regular monthly payments of $1500 over the last five years of marriage.

The Oluwek court held that as a general rule, the trial court may not consider financial assistance from family or friends in determining a party’s ability to pay alimony or child support.  However, there is an exception that allows the court to impute income based on gifts “if the gifts are continuing and ongoing, not sporadic, and where the evidence shows that the gifts will continue in the future.”  In Vorcheimer v. Vorcheimer, 780 So. 2d 1018 (Fla. 4thDCA 2001), the appellate court held that the trial court erred by imputing $1500 to the husband as income where there was no evidence that the payments would continue. The $1500 payments had been made on a monthly basis for twelve years, but the husband’s father testified at trial that he had stopped making the monthly payments and would not make them in the future.  The court distinguished that case from Ordini v. Ordini, 701 So.2d 663 (Fla. 4thDCA 1997), in which regular monthly payments from the husband’s parents continued through trial and the husband’s mother testified that she would continue to make them in the future.

alimony taxesThe Tax Cuts and Jobs Act “TCJA” has a definite effect on alimony payments.  Prior to the new law, alimony payments could be deducted by the payer for federal income tax purposes and recipients had to report the payments as taxable income.  Any divorces finalized before December 31, 2018 will continue under the old tax law.  Any divorces finalized after December 32, 2018 apply under the TCJA eliminates the deduction for alimony payments and recipients no longer have to include them as taxable income.  In addition, any modification of alimony payments after December 31, 2018 shall be affected by the TCJA if the modification specifically states that the TCJA applies; meaning if the TCJA is ordered applicable by the Court.

Pre-2019 divorce orders for alimony still qualify under the old federal income tax law for a deduction benefit without having to itemize if all requirements are met.  Requirements include: 1) a written document is required the alimony payment; 2) payment must be to or on behalf of a spouse or ex-spouse; 3) the divorce decree or separation document cannot state the payment is not alimony; 4) ex-spouses cannot live in the same household or file jointly; 5) a payment must be made in cash or by cash equivalent; 6) cannot be deemed to be child support; 7) the taxpayer’s social security number must be included on the tax return; 8) the obligation to make payments ceases upon the recipient’s death.  See IRS Tax Topic No. 452.

Depending on your situation, you need to speak with an experienced Jacksonville family law attorney now.  If you will be making alimony payments, it is in your best interest to get a divorce wrapped up before December 31, 2018 so payments will be deductible.  If you will be receiving payments, it is in your best interest to put off finalizing your divorce until next year, so the payments will be tax free to you.  Contact the Law Office of David M. Goldman, PLLC for a consultation.

You may be tired of receiving child support or alimony payments late or not at all, and you would like to be paid directly from the employer of your ex-spouse or child’s father/mother.  Florida Statutes 61.1301 provides that an income deduction order can be entered once there is an order of alimony or child support by the court.  The income deduction order must be issued by separate order.

There is a federally approved and required Income Withholding Order “IWO” that will allow you to garnish income for child support and alimony.  See 42 U.S.C. 666, Social Security Act.  Arrearage of child support can be withheld also and the employer/income withholder is given instructions on how much to withhold until full payment is made.

moneyThere are very clear rules about the IWO, and an IWO may be rejected and delay payment if not completed properly.  The employer must reject the IWO and return to the sender if the IWO instructs the employer/income withholder to send a payment to an entity other than a state disbursement unit, which is a centralized facility for collections and disbursement of child support payments.  Another reason the IWO must be rejected is if the form does not contain all the necessary information to comply with the withholding.  The IWO must include a dollar amount as the amount to withhold and must include a copy of the underlying order.  In addition, the correct Office of Management and Budget “OMB” approved form must be used or it will be rejected.

As a Jacksonville divorce lawyer, I have encountered my share of clients that are not too fond of the idea of paying alimony to a former spouse.  I suppose I understand.  Alimony considerations are controlled by Florida Statute 61.08, but in general will be based on one person’s need versus the other person’s ability to pay.   For many people, it’s not the money its self, but rather the idea of being forced to provide support that they would rather not provide after the relationship has ended.  Simply put, people are angry and are driven by emotions surrounding divorces, those emotions often conflict with what the court has ordered regarding support payments.  People will search for ways to protest as much as possible without running the risk of being held in contempt for not following a judge’s order.

151215_Allimony ChecksTake a look at the photo to the left. It shows a man and woman who were recently married.  Apparently, the photos are printed on checks that the man used to pay alimony to his ex-wife. Not all divorced couples hate each other, but it is clear to see that these checks were designed to take shots at the ex-wife every time she receives an alimony payment.  It makes for a good laugh on social media, but I wouldn’t recommend it under most circumstances.  As long as alimony is due, the court will have jurisdiction to enforce the support obligation. As long as the court retains jurisdiction, there are always things that the ex can do to complicate the former husband’s life.  Under Florida law, there is nothing wrong with what the husband has done here.   Although there are many many reasons not to antagonize and poke at an ex-wife, the law will allow this type of behavior.  Unless there is a provision in the divorce decree that can be used to attack these spiteful checks, the checks will be allowed.

My advice as a Jacksonville divorce lawyer is for the ex-husband not to poke the bear. For the ex-wife, it would be to cash the checks and enjoy the money. The ex-wife, however, under Florida law has the option to petition the court and ask that the payments go through the depository, rather than directly to her. It adds a middleman to the deal, but shuts down the ex-husband’s shenanigans.  At the Law Office of David M. Goldman, PLLC, our experienced divorce lawyers can help guide you through the divorce process and help protect your rights.  We also offer pretty awesome advice on what not to do in divorce case.  Call today for a free initial consultation.

Trusts have long been a tool used in asset protection and estate planning to protect property and income.  But  what if a person seeks to use a trust  as a shield to protect a trust beneficiary from making support payments in family law cases?  The answer is not necessarily straight forward, but depends on the circumstances and the terms of the trust.  However, Florida trust law makes it possible for a trust to be used to provide support to a trust beneficiary’s dependents.  This is  limited to child support or spousal support and is only considered when there are no other alternatives to receiving the support that is sought.  The person seeking to attach a trust’s distributions to a beneficiary must demonstrate to the court that certain factors are present that justify going after the trust.  A trust’s spendthrift provision will not defeat a garnishment for support of a dependent.

equalRecently, the 2nd District Court of Appeals, in Berlinger v. Casselberry, upheld a trial court’s order issuing a continuing writ of garnishment against any future disbursements from a trust for the ex-husband’s benefit after the ex-wife filed a motion for contempt and requested a writ of garnishment.  In this case, the ex-husband was ordered to pay a substantial amount of alimony per month.  The ex-husband stopped making the alimony payments, but lived a lavish lifestyle with his new wife.  The couple lived off a trust set up for the benefit of the ex-husband, who had attempted to hide the trust.  After the ex-wife discovered the trust, she requested the writ of garnishment, which the court granted.

The State of Florida holds spendthrift provisions in high regard and will respect them, generally.  However, the State’s policy as it relates to a person’s obligation to support his or her dependents is of higher interest to the State of Florida.  For more information on trusts or family law issues, contact the Law Office of David M. Goldman, PPLC.  Initial consultations are free.

Most people have had buyer’s remorse from time-to-time. The moment a person realizes he or she has made a bad deal can be very disappointing. As a Jacksonville divorce lawyer, I can tell you that settlement agreements in divorce cases can leave a person feeling the same way. Marital settlement agreements can be used to resolve any issue in a divorce case. Some subjects, like custody or time-sharing, may have to be approved by the court before being made a part of the final divorce decree. Child support, for example, that is normally based on guidelines can be more than what the law requires, if both parties have agreed to it.  A father that has agreed to pay $200 additional in child support per month will typically be stuck with the terms of the agreement he signed.  divorce_pic

Florida courts have long held that a signed settlement agreement in divorce cases will bind both parties.   This is so, because courts prefer people to work the cases out themselves, rather than rely on the court to solve problems through litigation. Jacksonville divorce lawyers would all hope that their clients won’t enter into agreements without the divorce lawyer having an opportunity to review and advise the client about the agreement, but divorce lawyers are sometimes faced with having to search for ways to get a client out of a settlement agreement the lawyer was not involved in.   Unless certain circumstances exist, a person is bound by a signed settlement agreement in divorce cases. Things that can make a settlement agreement unenforceable include fraud, duress, misrepresentation, and overreaching.

For example, a situation where a husband threatened to turn his wife and her business partners in to the IRS unless she signed the marital settlement agreement was found to be duress, and the agreement was set aside. Where one party has lied about what assets are available, courts are likely to invalidate those agreements, as well. Experienced Jacksonville divorce lawyers at the Law Office of David M. Goldman, PLLC can help you maneuver through the issues in your divorce case. Free consultations are available. Call us today at (904) 685-1200.

498955_holding_moneyAlimony Reduction and Termination: Alimony is often one of the most contested issues in divorce cases.  For many people, the idea of paying money to financially support an ex-spouse is a disgusting idea.  When the love and reverence turns to hate and disdain, making alimony payments to the ex-spouse is painful.  The pain is only magnified by a judge’s ruling that the payments are to be permanent.  An award of permanent alimony normally stays in place until the re-marriage of the recipient or the death of one of the parties.  However, under some circumstances, modification or termination of permanent alimony payments can be accomplished.

Florida Statute 61.14 authorizes the circuit court to reconsider alimony when the parties’ circumstances or financial ability change.  Courts interpret this by requiring three things: (1) a substantial change in circumstances; (2) the change was not anticipated at the time of the final judgment; and (3) the change is sufficient, material, permanent, and involuntary.  Applying this test, alimony can be either decreased or increased.

Florida courts have deemed that a former wife’s increased living expenses related to her condominium were enough to justify an increase in alimony.  It has also been determined that a former husband who voluntarily retires after reaching retirement age and has less income as a result should have that fact considered when the former husband asks for a reduction in alimony payments.  For more information, or for a free initial consultation regarding the specific facts in your case, call the Law Office of David M. Goldman, PLLC at (904) 685-1200.  Our experienced Jacksonville alimony lawyers and divorce lawyers can help you or a loved one work toward the best outcome in your case.

A client walked into Apple six months ago, trying to get his alimony modified. He was not sure about hiring an attorney because he felt his previous attorney was a tiger in his office but a wallflower in Court. We finally asked us him to let us try to solve his family law problem and made a commitment to treat him like our most important client. His reluctance gave way to confidence in our firm and he hired us.

The case was a garden-variety modification of alimony, one of the most heavily litigated types of family law cases. The standard for a modification of alimony is completely at the discretion of the court. The court does not have an obligation to modify; it just has the option…that is if your attorney proves the three elements. To receive a modification of alimony the petitioner, the person asking for the modification in layman’s terms must demonstrate that three things have happened since the original divorce:

• The party asking for a modification must demonstrate a material change in circumstances. That means things have drastically changed for one party for the better or the worse. Sickness or long-term loss of employment can be examples of such material changes.

From the Family Law Section of the Florida Bar:

As the start of the 2013 legislative session approaches, one of the items for debate among advocates will be Florida’s alimony statutes. Florida currently enjoys some of the most progressive alimony laws in the nation and the Family Law Section of The Florida Bar has worked closely with members of the legislature to pass good public policy that is fair and equitable to all parties. As a result of the efforts of the Section through changes made to the alimony statutes in 2010 and 2011, fewer cases are litigated and more are settled.

“The Family Law Section believes any new legislation should set a reasonable approach toward improvements,” said Carin M. Porras, chair of the Family Law Section of The Florida Bar. “In the upcoming legislative session, we will be working to educate policy makers and the general public to clarify misconceptions about Florida’s alimony statutes; misconceptions such as permanent alimony payors are prohibited from retiring or the income of a second husband or wife creates a basis for an upward modification of alimony.”

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