Equitable Distribution: The Marital Interest in a Non-Marital Property or Premarital Home

As couples marry later in life or have second marriages, one or both of the parties already owns a home. As a result, in many divorce cases, the parties live in a home owned solely by one of the parties.  In these cases, a common question is whether the non-owner spouse has any interest in the home.

Equitable distribution in Florida is governed by section 61.075, Florida Statutes.  When dealing with the division of a couple's assets and liabilities, the first step in the analysis is for the court to set aside any non-marital assets and liabilities.  The court is then tasked with distributing the marital assets and liabilities between the parties, with the premise that such assets and liabilities should be divided equally.

Under section 61.075(6)(a)(1)(b), Florida Statutes, marital assets are defined to include the "enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both."

If marital funds are used to enhance a non-marital asset, the value the enhancement is therefore marital. Accordingly, if the parties built a home on non-marital property, the enhanced value relating to the structure is marital.  The relevant statutory language also clearly provides that, under certain circumstances, the appreciation of a non-marital asset is indeed a marital asset. See Kaaa v. Kaaa, 58 So. 3d 867, 870 (Fla. 2010).  In particular, the passive appreciation of a non-marital asset, such as a home, is properly considered a marital asset where marital funds or the efforts of either party contributed to the appreciation.  Id.  The Florida Supreme Court has held that, if one party uses marital funds to pay the mortgage on a non-marital property and the non-owner spouse makes "contributions" to the property, some portion of the passive appreciation on the home is subject to equitable distribution.  Id. at 871.  

The Florida Supreme Court adopted the following methodology for determining how the appreciated value is properly allocated between the parties:

If a separate asset is unencumbered and no marital funds are used to finance its acquisition, improvement, or maintenance, no portion of its value should ordinarily be included in the marital estate, absent improvements effected by marital labor. If an asset is financed entirely by borrowed money which marital funds repay, the entire asset should be included in the marital estate. In general, in the absence of improvements, the portion of the appreciated value of a separate asset which should be treated as a marital asset will be the same as the fraction calculated by dividing the indebtedness with which the asset was encumbered at the time of the marriage by the value of the asset at the time of the marriage. If, for example, one party brings to the marriage an asset in which he or she has an equity of fifty percent, the other half of which is financed by marital funds, half the appreciated value at the time of the petition for dissolution was filed, § 61.075(5)(a) 2, Fla. Stat. (1993), should be included as a marital asset. The value of this marital asset should be reduced, however, by the unpaid indebtedness marital funds were used to service.

See Kaaa, 58 So. 3d at 872.

Thus, when non-marital real property is encumbered by a mortgage that was paid by marital funds, a pro-rata portion of the passive appreciation in the property's value that accrues during the course of the marriage is a marital asset subject to equitable distribution.

If you have questions concerning your Florida equitable distribution or property division rights, please contact an experienced Tampa family law attorney.

By Richard Mockler

Florida Law on Morality, Adultery, Homosexuality, and Child Custody

Under Florida law, Courts are required to make all parenting decisions based on the child's best interests. The Florida legislature has set out 20 factors for courts to consider when establishing a parenting plan or making a parenting or custody determination.  See Fla. Stat. § 61.13(3).

The parenting factors address many issues, such as which parent is more willing to share time, handles more of the parenting responsibilities, acts on the interest of the child, has been caring for the child, demonstrates knowledge of the child's circumstances, provides a consistent routine, communicates with the other parent, avoids violence, and maintains a home free of substance abuse. See Fla. Stat. § 61.13(3).  These considerations are largely non-controversial.

Courts are also required to consider the "moral fitness of the parents."  See Fla. Stat. § 61.13(3)(f).  This factor is extremely subjective, and it does not frequently play a significant role in custody determinations.

For the trial court to consider a parent’s "moral fitness" in connection with establishing a parenting plan or determining parental responsibility, the conduct in question must have a “direct effect or impact” upon the minor child.  See Smith v. Smith, 39 So. 3d 458, 460 (Fla. 2d DCA 2010).  Moreover, the connection between the conduct and the harm to the child must have an evidentiary basis.  See id. (quoting Jacoby v. Jacoby, 763 So.2d 410, 413 (Fla. 2d DCA 2000)); see also Willis v. Willis, 818 So. 2d 530, 533 (Fla. 2d DCA 2002).   “A connection between the actions of the parent and the harm to the child...cannot be assumed.”  See Packard v. Packard, 697 So. 2d 1292, 1293 (Fla. 1st DCA 1997).

Further, when a parent's alleged adultery is at issue, the act of adultery should not be taken into consideration in determining custody unless the trial court finds that the adultery has a direct bearing on the child’s welfare. See Smith, 39 So. 3d at 461; Dinkel v. Dinkel, 322 So. 2d 22, 24 (Fla. 1975); Willis, 818 So. 2d at 533. Marital misconduct is not necessarily an appropriate standard for determining the best interests of the child.  See Farrow v. Farrow, 263 So. 2d 588, 590 (Fla. 2d DCA 1972); McAnespie v. McAnespie, 200 So. 2d 606, 609 (Fla. 2d DCA 1967).  Even if a parent commits adultery, it may be better for that parent to have custody of the child.  See Willis, 818 So. 2d at 533.  “Adultery may or may not have any direct bearing on the welfare of a child of tender years.”  Id.  The mere possibility of a negative impact on the child is not sufficient.  See Willis, 818 So. 2d at 533.

Florida courts have also rejected any notion that the potential of societal disapproval for immoral behavior may be used as a justification for favoring one parent in a custody case.  See Lofton v. Sec’y. of the Dept. of Children and Family Services, 377 F.3d 1275, 1300 (Anderson, J., dissenting from the Denial of Rehearing En Banc) (citing Maradie v. Maradie, 680 So. 2d 538 (Fla. 1st DCA 1996)).

In Maradie v. Maradie, 680 So. 2d 538, 540 (Fla. 1st DCA 1996), the parties presented considerable testimony about the sexual conduct of each parent and its relation to the parent's "moral fitness" under section 61.13(3)(f), Florida Statutes.  Among other things, the former husband presented evidence that his former wife was bisexual and had been involved in lesbian relationships.  Id.  The court-appointed psychologist testified, however, that there was no evidence that the former wife's sexual orientation impaired her parenting ability or had negatively impacted the child.  Id.  Nevertheless, the trial court awarded custody of the parties' daughter to the former husband.  Id.  The trial court based its decision on the following reasoning:

The testimony reveals that Mrs. Maradie, with her homosexual lover, spend nights and sleep together in the same bed, kiss, hold hands and speak in terms of endearment in front of the child. The possibility of negative impact on the child, especially as she grows older and reaches her late pre-teen and early teen years, is considerable.  The Court does not have to have expert evidence to reach this conclusion, but can take judicial notice that a homosexual environment is not a traditional home environment, and can adversely affect a child. To say that this cannot be considered until there is actual proof that it has occurred is asking the Court to abdicate its common sense and responsible decision-making endeavors.

Maradie, 680 So. 2d at 540-41.  Florida's First District Court of Appeal explained that the trial court was permitted to consider a parent's sexual conduct in determining the parent's moral fitness under section 61.13(3)(f).  The trial court, however, was required to focus on whether the parent's behavior had a direct impact on the welfare of the child.  Id. at 541.  The trial court certainly was not permitted to take "judicial notice" of the "fact" that a homosexual environment is not traditional and can adversely affect a child.  Id. at 541.

In Ward v. Ward, 742 So. 2d 250, 254 (Fla. 1st DCA 1996), Florida's First District Court of Appeal again clarified that the sexual orientation of the custodial parent does not, by itself, justify a custody change.  In Ward, the trial court changed custody from the former wife, who was a lesbian, to the former husband, who was previously convicted of second degree murder for killing his first wife.  Id. at 252.  On appeal, Florida's First District Court of Appeal found that the trial court was not focused on the fact that the former wife was a lesbian, but rather on the best interests of the child.  Id.  The trial court concluded that the former wife was involved in a relationship that directly and adversely affected the child.  Id. at 254.  The First District Court of Appeal held that the trial court did not abuse its discretion by changing custody because the determination was without regard to the sexual orientation of that relationship.  Id.

In Packard v. Packard, 697 So. 2d 1292, 1293 (Fla. 1st DCA 1997), the trial court awarded custody to the former husband where the wife was a lesbian who had been living with a woman with whom the parties had been involved in a menage a trois during their marriage.  Id.  Interestingly, at the time of the divorce, the former husband was living with his new girlfriend, her children, and the parties' daughters.  The former wife argued that the trial court based its custody decision solely on her sexual orientation.  Id.  The former husband's living arrangements were also fairly viewed as "untraditional."  Id.  The former wife argued that it was therefore discriminatory for the trial court to base its custody determination on the finding that a more "traditional family environment" would be provided by the former husband.  Id.  Florida's First District Court of Appeal again explained that the trial court may consider a parent's sexual conduct in determining the parent's moral fitness under section 61.13(3)(f), but that in such consideration "the trial court should focus on whether the parent's behavior has a direct impact on the welfare of the child."  Id.  In other words, the trial court's primary consideration must be on the conduct involved and whether the conduct has had or is reasonably likely to have an adverse impact on the child. Id.  The Court of Appeal reversed the trial court's custody determination and remanded the case with instructions to follow the foregoing principles when considering the parties' moral fitness.  Id.

In Jacoby v. Jacoby, 763 So. 2d 410 (Fla. 2d DCA 2000), the former husband's case centered largely on his former wife's sexual orientation.  The trial court made remarks about the negative impact of the mother's  sexual orientation on the children.  Id. at 413.  The Second District Court of Appeal found that the trial court's comments were conclusory and unsupported by the evidence.  Id.  Specifically, the trial court found that "the community" shared the former husband's belief that homosexuals are immoral and should not be entrusted to rear children.  Id.  The trial court further found that a "strong stigma" attaches to homosexuality and that while being reared in a homosexual environment does not appear to alter sexual preference, it does affect social interaction and that it is likely that the children's peers or their parents will have negative words or thoughts.  Id.  The Second District Court of Appeal, however, found that even if the trial court's comments about the community's beliefs and possible reactions were correct and supported by the evidence, "the law cannot give effect to private biases."  Id.  With respect to the custody decision, the Second District further reasoned that "even if the law were to permit consideration of the biases of others, and even if we were to accept the assumption that such would necessarily harm the children, the bias and ensuing harm would flow not from the fact that the children were living with a homosexual mother, but from the fact that she is a homosexual."  Id.  Accordingly, the Second District Court of Appeal held that the trial court's "reliance on perceived biases was an improper basis for a residential custody determination."  Id.  The trial court also improperly concluded that the children's exposure to the Baptist religion coupled with living with a homosexual parent would necessarily created confusion for the children.  Id. at 414.  The lower court also made a number of other leaping conclusions in support of its decision to award custody to the heterosexual father.  Id. at 414-15.  None of these jumps conclusions were supported by the evidence, and the Second District Court of Appeal reversed the trial court's decision.  Id. at 414-15.  In short, when making its custody determination, the trial court permissibly penalized the mother for her sexual orientation without evidence that it harmed the children.  Id. at 415.

All of these decisions by the Florida courts make clear that homosexuality alone cannot be the basis for an adverse custody decision.  The trial court must link any allegedly "immoral behavior" to a direct affect on the minor children.  That connection must be supported by evidence in the record.  The link cannot be the product of speculation or judicial notice.  In other words, before a court can make any judgment concerning a party's homosexual or other allegedly "immoral" conduct, the court must be prepared to explain who the conduct at issue resulted in a direct impact on the minor child.

If you have questions about child custody issues in Florida, please contact an experienced Florida family law attorney.

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.

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.