Debtor's Prison: Is an Award of Florida Family Law Attorneys' Fees Enforceable by Contempt?

There is much confusion among parties in Florida family law cases - and certain practicing attorneys - regarding which obligations are enforceable by the court's contempt powers.

One of the more common questions that arises is whether a client "has to pay" an award of attorneys' fees ordered by the court.  Generally speaking, no one wants to pay "the enemy."

Long ago, our society determined that we should not have "debtors' prisons."  In other words, a free person cannot be threatened with imprisonment for failure to pay his or her debts.

This right is expressly protected by Article I, Section 11 of the Florida Constitution.  But, the courts  have fashioned an exception to that rule for family support obligations, such as child support and alimony.

The courts have reasoned that the obligation to pay spousal or child support is a personal duty owed to both the former spouse or child and to society rather than a debt within the meaning of article I, section 11.  See Gibson v. Bennett, 561 So. 2d 565, 570 (Fla. 1990).

"The courts have a duty to provide an effective, realistic means for enforcing a support order, or the parent or former spouse for all practical purposes becomes immune from an order for support."    Gibson, 561 So. 2d at 570.  This duty includes enforcement of a judgment through contempt because "a remedy at law that is ineffective in practice is not an adequate remedy."  Id.

The use of contempt in a family law case is premised on the assumed necessity for the special protection and enforcement of rights growing out of the family relationship.  See Fishman v. Fishman, 656 So. 2d 1250, 1252 (Fla. 1995).  This rule has been extended to include the enforcement of payments of attorney's fees related to family law proceedings.  Id.  Attorneys' fees in family law cases are considered a form of support, as the expense of litigating matters pertaining to family obligations should be borne by the family in the same manner as other expenses.

Although the Court may employ its contempt powers to enforce payment of an attorney's fee award, that power is not without limits.  Civil contempt is appropriate only if the party to be held in contempt has the present ability to comply with the court's order and thereby avoid incarceration or other sanctions.  See Bowen v. Bowen, 471 So. 2d 1274, 1278 (Fla. 1985).

Waste and Dissipation Claims: Is There a Statute of Limitations?

In a divorce proceeding, clients often ask how far back the Court will look when assessing whether a party engaged in waste or dissipation of marital assets. Equitable distribution of marital assets is governed by section 61.075, Florida Statutes.

Under section 61.075, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors. Section 61.075(1)(i) requires trial courts to consider intentional dissipation that occurs up to two (2) years prior to filing the petition.

Dissipation occurs where one spouse uses marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. See Roth v. Roth, 973 So. 2d 580, 585 (Fla. 2d DCA 2008) (citing Romano v. Romano, 632 So. 2d 207, 210 (Fla. 4th DCA 1994)).

Too often, a divorce attorney will advise clients that you can only prove waste or dissipation that occurred with the past two (2) years. The statute, however, is silent as to intentional waste or dissipation that may have occurred more remotely in time. If your spouse intentionally dissipated marital assets three years prior to the filing date, is there any recourse?

 Courts have held that the legislature did not intend to preclude consideration of waste or dissipation beyond two years. See, e.g., Beers v. Beers, 724 So. 2d 109, 114-15 (Fla. 5th DCA 1998); Amos v. Amos, 99 So. 3d 979 (Fla. 1st DCA 2012).  Intentional dissipation of marital assets occurring more than two years prior to filing a petition for dissolution may, in some instances, be a factor necessary to do equity and justice between the parties.  Clearly, a party should not be able to transfer significant assets outside the marital estate, wait two years, and then file for divorce.  Courts have considered waste and dissipation beyond two years under the catchall provision of section 61.075(1)(j).  Id.  But, the Court has great discretion in deciding whether to consider any evidence of waste or dissipation that occurred more years prior to the filing date.

Be Prepared: Get a Prenup Before Saying "I Do"

Most people like to think that they are prepared for the obstacles that they will face in life.  Like the Boy Scout motto, Americans like to “be prepared.”

And, just in case we are asleep at the wheel, there are people constantly reminding us every step of the way that we should protect ourselves.  It starts early.  For example, a parent might remind us to bring an umbrella – because it might rain.  As we get older, we learn to buy car insurance because we might have an accident.  People buy alarm systems to detect and deter intruders.  Working professionals buy insurance to protect against the unlikely risk of disability.  Most people buy life insurance to hedge against the risk that they might die.  And, if you have a mortgage, homeowner’s insurance is mandatory to protect against risks such as fire and wind.

Americans also like contracts.  Remember the license agreements that you had to accept just to install a game on your computer?  When you went off to college, your first credit card certainly came with a cardholder agreement.  If you wanted to rent an apartment, that definitely required a lease.  Did you want cell phone service?  You needed a contract.  If you go to work at a business, your employer might ask you to sign non-compete agreement.

But, for some strange reason, people enter into marriage with no contract or agreement whatsoever.  They just trust each other.  Remarkably, these are the same individuals who buy the life insurance and disability insurance, even though a 30-year-old man faces a 0.1% chance of dying before age 31 and less than 5% of wage earners are classified as “disabled.”  Yet, they turn a blind eye to the fact that more than 50% of marriages result in divorce.

A prenuptial agreement or “prenup” can protect you against losses that might result from your divorce.  If you don’t have a prenuptial agreement, what do you stand to lose?  You can start with giving away roughly half of the net worth that you worked so hard to accumulate during the marriage.  And, to the extent you earned them during the marriage, you will likely have to divide your pension, retirement benefits, and/or retirement accounts.  You may also have the privilege of paying a large percentage of your monthly salary to your “ex” as alimony.  And, without a prenup, you could be forced to pay off half of your ex’s bad debt.  You could even be saddled with half of your “ex’s” student loans. 

But, there is rarely someone in your corner to remind you about getting a prenup.  Until recently, that is.  Since the Great Recession, 3 out of 4 family law attorneys report that prenups are on the rise.  This may be due to the devastating impact of the financial collapse, which has made people questions how much they can earn in the future and makes them want to keep what they have earned. 

Recently, I have had several parents call my office about prenups for the children.  One retired military officer wanted a prenup for his son, who was about to start flight school.  The father was concerned that his son might lose half of his hard-earned military retirement pay if the marriage didn’t last a lifetime.  A mother recently called me because she had refused to pay for the wedding unless the couple signed a prenuptial agreement.  And, an accountant paying lifetime alimony called me last year in hopes that a prenup might avoid the same fate for his son.

In certain circumstances, a prenuptial agreement can make a marriage more likely to last.  A spouse is more likely to return to work or keep working if that he or she cannot rely on alimony in the event that the marriage breaks down.  And, in some cases, a spouse may be less likely to leave or look around if he or she knows that they will not be able to use the divorce to raid the other party’s retirement pay, pension, assets, and income.

Fortunately, despite what you might have heard, prenuptial agreements are enforceable under Florida law.  In 2007, the Florida Legislature passed the Uniform Premarital Agreement Act.  See Fla. Stat. § 61.079.  Under the Act, a premarital agreement must be in writing and signed by both parties.  Id.  The Act allows Parties to negotiate and agree upon the following issues:  (i) the parties’ rights and obligations concerning any assets and liabilities; (ii) the right to buy, sell, use, transfer, or dispose of property; (iii) the distribution of property upon separation, dissolution, death, or other event; (iv) the right to alimony; (v) the making of a will or trust; and (vi) the disposition of life insurance proceeds.  See Fla. Stat. § 61.079(4)(a).  And, one Florida court specifically held that a prenup may be enforceable to protect a pilot's pension and military retirement pay.  See Gordon v. Gordon, 25 So. 3d 615, 617-18 (Fla. 4th DCA 2009).

Florida courts have held that the parties do not need to attorneys for a prenuptial agreement to be enforceable.  See Casto v. Casto, 508 So. 2d 330, 334-35 (Fla. 1987).  The Florida Supreme court has also held, however, that a prenuptial agreement may not be enforceable if the agreement was procured by as a result of fraud, deceit, duress, coercion, misrepresentation, or overreaching.  SeeCasto, 508 So. 2d at 333.  Additionally, a prenup may be set aside if there is a showing that the agreement is unreasonable on its face for failure to provide adequately for the challenging spouse coupled with a lack of adequate financial disclosure.  Id.  So, even though a lawyer is not absolutely necessary, an agreement is far more likely to be upheld with the assistance of counsel.  

If you have questions about prenuptial agreements, please contact us to consult an experienced Tampa divorce and family law attorney.

Life Insurance to Secure Alimony and Child Support

Clients often ask about whether the Court will require a party to procure life insurance to secure their alimony or child support obligation.  Like many legal questions, the answer is "it depends."

Courts do have the authority to order a party to provide term life insurance to secure his or her child support and alimony payments. See Fla. Stat. §§ 61.08(3), 61.13(1)(c); Sobelman v. Sobelman, 541 So. 2d 1153, 1154 (Fla. 1989). 

When determining whether life insurance is appropriate, the court will consider the need for the insurance, the cost and availability of the insurance, and the financial impact upon the obligor.  See Child v. Child, 34 So. 3d 159 (Fla. 3d DCA 2010); Plichta v. Plichta, 899 So.2d 1283, 1287 (Fla. 2d DCA 2005). See also Byers v. Byers, 910 So.2d 336, 346 (Fla. 4th DCA 2005). 

Florida courts have held, however, that certain "special circumstances" must be present to require a payor to purchase life insurance on his or her alimony or child support obligation. See Child v. Child, 34 So. 3d 159 (Fla. 3d DCA 2010); Massam v. Massam, 993 So. 2d 1022 (Fla. 2d DCA 2008); Melo v. Melo, 864 So.2d 1268 (Fla. 3d DCA 2004); Frechter v. Frechter, 548 So.2d 712 (Fla. 3d DCA 1989). 

But, the "special circumstances" are not particularly difficult to prove.  The special circumstances may be present where the former spouse would face difficult financial circumstances if the support payments were to cease upon the death of the obligor.  The circumstances may be present where the surviving party has limited earning capacity or children to support.  See, e.g., Child v. Child, 34 So. 3d 159 (Fla. 3d DCA 2010); Kotlarz v. Kotlarz, 21 So. 3d 892, 893 (Fla. 1st DCA 2009); Richardson v. Richardson, 900 So.2d 656, 661 (Fla. 2d DCA 2005); Massam v. Massam, 993 So. 2d 1022 (Fla. 2d DCA 2008);Davidson v. Davidson, 882 So. 2d 418 (Fla. 4th DCA 2004).

If the special circumstances are present, the Party requesting the life insurance must establish that the amount of insurance sought is available at an affordable cost.  See Massam, 993 So. 2d at 1022; Rubinstein v. Rubinstein, 866 So. 2d 80 (Fla. 3d DCA 2003); Zimmerman v. Zimmerman, 755 So. 2d 730 (Fla. 1st DCA 2000); and Schere v. Schere, 645 So. 2d 21 (Fla. 3d DCA 1994). 

If you have questions about alimony or child support, please contact us to consult an experienced Tampa divorce and family law attorney.

Prenuptial Agreements and Estate Planning Considerations: ‘Till Death Do Us Part

Nearly 80,000 Florida residents file for divorce each year.  And, Florida has the nation’s highest percentage of residents over the age of 65.  Many people enter into a second marriage with significant assets and adult children.  Accordingly, it is often important to consult an experienced Florida family law attorney for a prenuptial agreement that addresses address both marital and estate planning issues.

Florida adopted the Uniform Premarital Agreement Act (the “UPAA”), which expressly provides that parties may reach a binding contract on the following issues:  (i) the parties’ rights and obligations concerning any assets and liabilities; (ii) the right to buy, sell, use, transfer, or dispose of property; (iii) the distribution of property upon separation, dissolution, death, or other event; (iv) the right to alimony; (v) the making of a will or trust; and (vi) the disposition of life insurance proceeds.  See Fla. Stat. § 61.079(4)(a).

It is imperative to understand the estate and probate rights that may be waived by a spouse.  See Fla. Stat. § 732.702.  For example, asurviving spouse normally has the right to receive an “elective share” of the deceased spouse’s estate (under current law, 30% of the elective estate as defined in Chapter 732, Part II, Florida Statutes).

A surviving spouse also has special rights to homestead real property.  A decedent may not freely devise homestead real property upon death if survived by a spouse or minor child.  See Fla. Stat. § 732.4015.  The surviving spouse is entitled to a life estate in the property or, upon election, an undivided one-half interest.  See Fla. Stat. §§ 732.401 and 732.4015.  The property is exempt from any claims by the decedent’s creditors.  See Art. X, Sec. 4, Fla. Const. 

Additionally, if a spouse dies intestate (i.e., without a will), a surviving spouse is entitled to a specific share of the estate.  See Fla. Stat. § 732.102.  If a person marries after making a will, the surviving spouse is entitled to receive an intestate share of the estate.  See Fla. Stat. § 732.301. A surviving spouse is also entitled to receive up to $20,000 in certain exempt property.  See Fla. Stat. § 732.402.  A surviving spouse is separately entitled to receive up to $18,000 in “family allowance” for support during the administration of an estate.  See Fla. Stat. § 732.403.  Finally, a surviving spouse has preference in appointment to serve as personal representative of a decedent’s intestate estate. 

All of these rights may be waived in a prenuptial agreement.  See, e.g., Fla. Stat. §§ 732.701 and 732.702 (to the extent the prenuptial agreement affects estate and probate rights, it must satisfy all other applicable formalities).  The prenuptial agreement, however, may include language requiring the parties to make a will or trust, to give a devise, or not to revoke a will or devise.  See Fla. Stat. §§ 61.079(4)(a) and 732.702.  A practitioner must be prepared to advise clients on any rights that are being waived and avenues to protect the client’s interests.

Do I have to pay child support if I receive disability payments from the government?

One common question is whether a parent has to pay child support if the children are receiving social security payments as a result of the parent's disability.

The short answer is that social security payments do not negate the obligation to pay child support.  A disabled parent, however, does receive credit for the social security paid for the benefit of the children.  In some cases, especially where the disabled parent has no other income, these payments may actually exceed the support obligation.  The fact of the matter is that, to make any determination, you should still have a Florida family law attorney or other qualified person apply the Florida child support guidelines, properly taking into account any social security benefits paid to the children.

Under the Florida child support guidelines, social security is treated as income for purposes of calculating the parents' child support obligation.  Specifically, under section 61.30(2)(a)(8), the social security benefits are treated as income to the disabled parent.  The disabled parent, however, also receives credit for paying support equal to the amount of the social security received on behalf of the children.  In other words, the social security funds are hypothetically earned by the disabled parent and paid by that parent to the children.

This rule was established by the First District Court of Appeals in Williams v. Williams, 560 So. 2d 308 (Fla. 1st DCA 1990).  In Williams, the trial court failed to credit a disabled father for social security payments received by the mother on behalf of their three children.  The court ordered that, in addition to the disability funds the mother received directly, the father also had to pay child support out of his own disability payments.  As a result, after satisfying his child support obligations, the father had no money from which to live.  The First District found that the court erred when calculating the child support guideline amount by failing properly to account for the social security payments received by the children.

In most cases, the social security payments will exceed the disabled parent's obligation to pay support.  This is especially true where the disabled parent has no other material income.

Smart Lawyer Gets No Sympathy from the Court

A story published by Law.com on Christmas Eve really got my attention.

So, when is it fair to revisit the terms of your divorce?  That may depend on who you are.

Yes, a final judgment or decree is supposed to be “final.”  But, in family law cases, there are occasions where it is completely appropriate and sometimes even necessary to change the terms of the final judgment or decree.

What justifies modifying a final judgment?  You obviously don’t want people going back to court every time they realize they left something out of their agreement or want something new.  At the same time, courts have to respect that circumstances do change.  This is especially true with continuing obligations such as child support, alimony, and visitation.

The law is pretty clear that you can revisit alimony, custody, time-sharing, and parental responsibility when there is a substantial change in circumstances.  Most states also require that the change is involuntary and unanticipated.

But, when is it appropriate to reconsider the equitable distribution of assets?  A high-ranking New York real estate attorney at the prestigious Paul Weiss law firm recently learned that he would receive no sympathy from the court when his circumstances changed for the worse.  

Steven Simkin had been married to his wife, Laura Blank, for more than 30 years.  They spent the better part of two years fighting over the value of certain real estate investments and Mr. Simkin’s law practice.  One item that was not subject to dispute was their account at Bernard L. Madoff Investment Securities LLC, which reflected a value of $5.4 million.  In the divorce, Laura Blank took $2.7 million in cash for her share of the Madoff investments.  Presumably for tax and other reasons, Mr. Simkin left most of the money in the Madoff investment fund.

As virtually everyone now knows, Bernie Madoff's investment fund was one of the largest ponzi schemes in the history of the world.  And, it turns out that Steve Simkin’s Madoff investments were completely worthless.  After learning that he paid his wife $2.7 million for her half of a worthless investment, Mr. Simkin asked a New York court to set aside the agreement.

On December 24, 2009, the New York Law Journal reported that the court denied any relief to Mr. Simkin. According to the report, Acting Supreme Court Justice Saralee Evans held that the Court simply would not revisit the parties’ settlement.  The Court reasoned that the account could have been converted to cash, so neither party was mistaken in their marital settlement agreement.  

But, what the Court apparently failed to consider was that, even if the money had been withdrawn, it still would have been subject to a “clawback suit” by the Trustee for the Madoff Estate.  The Trustee can recover withdrawals going back six years.  Nevertheless, Mr. Simkin is simply out of luck.  First, he lost $5.4 million in the Bernie Madoff fraud. Then, to add insult to injury, he unwittingly gave his wife $2.7 million for her share of the worthless Madoff investments.  Of course, there are many stories about people who were screwed by Bernie Madoff.  But, in this case, the family law judge decided that Mr. Simkin should bear 100% of the loss and his wife should keep the $2.7 million she took for her share of the sham investment. 

The Court simply had no sympathy for a man who had represented many of the world’s most sophisticated investors in their most important real estate deals.  I question whether the Court would have reached the same conclusion had the wife been left with the worthless investments. 

The only good news is that Bernie Madoff will be spending the rest of his life in prison as part of a 150-year sentence.  Unfortunately for Mr. Madoff, there are several inmates who apparently have a sense of rough justice that is even stronger than the Judge that slammed Steve Simkin.