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APPOINTING A GUARDIAN AD LITEM IN FLORIDA DISSOLUTION CASES?
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When should a Guardian Ad Litem be requested in a Dissolution of marriage Action and what are the duties and responsibilities of Guardians Ad Litem (GAL). The Issue of whether to request the Court appoint a GAL usually arises in … Continue reading

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Should I keep or sell my home in a Florida Divorce?

Issues to Consider when deciding whether to keep or sell the marital home in a Florida Divorce:

For many couples, the marital home may well be the single largest asset in the divorce. Most couples own their home jointly—although there will certainly be those who came into the marriage with a home and never added their spouse’s name or co-mingled the asset in any way. If you jointly own your marital home (and probably have a mortgage), the issue of whether to keep or sell the house can become one of the biggest decisions in the divorce. In many cases, one spouse remains in the home and the other moves out during the process of the divorce. Even if the spouse remaining in the home intends to sell or refinance at some point, this usually does not happen immediately. There are a number of issues you need to consider during your Florida divorce regarding keeping or selling your marital home. Some of these issues include: It is often advantageous to separate yourself from your spouse as quickly as possible.

Depending on your situation, your Florida divorce attorney may counsel you to do whatever it takes to disentangle your day-to-day living situation from that of your spouse. While there are the rare few couples who can continue to co-own a home, there are many others for whom this type of arrangement simply won’t work. Assume you agree to stay in the marital home with your minor children for five years—until the children have all graduated from high school. At that point, the house will be sold and the proceeds divided. Although in theory, this might be a workable solution, in practice, how will you feel if your ex spends the next five years constantly complaining about how you are taking care of the house (the shrubs aren’t trimmed, he or she doesn’t like the color you painted the house, etc.). You are likely to find this invasive, while your ex may feel since the house is still technically half theirs, they have every right to dictate what you do or don’t do to the house. In most cases, whenever possible, it is a better idea to disentangle yourself from your spouse as efficiently and quickly as possible. Things to consider if you are hoping the Judge will distribute the martial home to you.

First of all, can you afford the mortgage on your own? Almost every divorced person underestimates what it will cost to pay all the bills on their own. Sit down and map out a realistic budget, and determine whether or not you can afford to stay in the home, taking into account property taxes, utilities and regular maintenance and upkeep. Next, you need to determine whether you will really be happy staying in a home you and your ex lived in together. Will there be bad memories for you? Will you ever feel that this is truly your home rather than the home of you and your ex? Should you decide to sell the home later, is there enough equity in the home to make it a good business deal for you? All of these are very important questions, that require well-thought-out answers. Things to consider if you are the spouse planning to leave the marital home:

  •  First of all, if your name is also on the mortgage, consider what would happen if you trust your ex to continue to pay the mortgage and he or she defaults? If this were to happen, your credit would be damaged in the same manner as your ex’s. If you are planning to buy your own home, consider whether a lender will be inclined to loan you money when you are still obligated on your marital home mortgage. A final note of caution if you are contemplating moving out of the marital home; creditors can downgrade your credit score when multiple addresses of short duration are shown.
  • The marital home needs to be competently valued. Before you make a decision regarding your marital home, as far as whether to stay, leave, sell or keep, it is a good idea to have the home appraised and see exactly where you are, financially. If you and your ex are on good terms, you can save yourself some money by going online and seeing what comparable homes in your neighborhood have sold for. If yours is an adversarial divorce, then you may end up with “dueling appraisals”—one from you and one from your ex.
  •   Don’t forget about the possibility of Capital gains taxes. Today, a married couple will receive a $500,000 exclusion from gain, so capital gains tax is not so much of an issue as it once was, unless you have a higher priced home. Selling your home during a divorce means both spouses can exclude the first $250,000 of “gain” from any income which is taxable. Vacation homes are not eligible for capital gains exclusions; your principal residences is a home you have lived in for a minimum of two out of the five years before you sell the home. Capital gain is your home’s selling price, minus the expenses associated with the sale, minus your adjusted “basis.” Basis can be difficult to figure, but is essentially what you paid for your home with pluses and minuses for tax benefits and improvements. If you bought your marital home less than two years ago, you will not be entitled to the capital gains exclusion. If the two of you decide to co-own the house, but you will not be living there, then you could potentially lose your $250,000 capital gains exclusion when and if the house is sold.
  • If you are the spouse who is selling your interest in the marital home, then you don’t need to consider capital gains, since the sale of the marital home is considered a part of your divorce. If you are the one buying your spouse’s interest in the house, intending to live in, and later sell the house, then you will be subject to capital gains when you sell—although you will receive the $250,000 capital gains exclusion.
  • Should you record a lien on the house? If either you or your ex will stay in the marital home, then a divorce lien can be implemented. The spouse who will stay in the marital home will give the other a promissory note, secured by the deed of trust or mortgage to the house.
  •  What about remaining together in the marital home post0divorce when you cannot afford two residences? While this may sound like an unworkable solution to the question of what to do with the marital home, a slow economy has forced some couples to do just that. Perhaps you and your spouse are upside down on your mortgage. You can’t afford to sell the house until it becomes worth more, and you can’t afford to live in separate residences. If your home is big enough, this could be a workable solution—depending on how contentious the relationship is, and whether there are children involved. Some couples continue to live in the marital home precisely for the benefit of the children, to avoid splitting the children’s time between the parents.
  • Although in some states, Do you have to be concerned about being accused of abandoning the marital home if you leave? No. This is not the case in the state of Florida. In Florida, either spouse is allowed to move out of the marital house with no danger of the court raising the issue of abandonment, since Florida law fails to address the issue. That being said, being the one to move out of the marital home could give your spouse the opportunity to remain in the marital home as primary caregiver of the children. This could then be considered when the court is determining custody. The court may decide it is in the best interests of the children to remain in the marital home—with the parent who stayed there. This means that while moving out doesn’t directly affect your property rights, it could indirectly affect who will remain in the home following the divorce. If you are the one who moves out of the marital home, your spouse is not allowed to change the locks or lock you out of the home without a court order in place.
  • Issues to  weigh in deciding whether to keep the marital home. There are instances when keeping the marital home simply makes sense, whether financially, or from a practical standpoint. Some of those instances include:
  • While the marital home is an asset, and should be treated as such, in many cases it can be extremely difficult for the spouses to be emotionally detached about the home, particularly when they have lived in it for ten, twenty, thirty or even more years. Perhaps this is where you raised your children and made lasting friendships with your neighbors. Perhaps your home’s location puts your children in a great school district, which you would not want to lose. Perhaps the home is close to your work, or maybe the home simply represents stability to one or both of you. When emotions are hindering the more practical, financial aspect of selling the marital home, it could be necessary for one or both spouses to speak to a forensic accountant or divorce financial analyst. Having a neutral third party review the numbers can help the spouses understand the economic impact of keeping/selling/staying in the marital home.
  • If you have minor children at home who are settled into a school district, it could make sense to stay in the marital home simply to provide stability for them.
  •  
  • If you have a fixed rate mortgage with a low monthly mortgage payment and relatively low property taxes, it might simply make good financial sense to remain in the marital home. You might have difficulty finding another place to live which will be as inexpensive as where you are currently living.
  • If you have enough assets to buy out your spouse, and you like your home and want to stay there, then it could be a good idea to stay in the marital home from a purely financial standpoint.
  • If you want to stay in the marital home and can easily refinance, buying out your spouse, then staying in the home could be a reasonable solution.  Likewise, there are instances when keeping the marital home may make sense to you emotionally, but really does not make sense from a financial standpoint. These situations include:
    • When you need the cash from the sale of the marital home to start a new life;
    • When you don’t have the cash to buy out your spouse;
    • When your children are grown and gone and you don’t really need the space, or
    • When the marital home is big and expensive, and you could not afford the upkeep, taxes and mortgage payments.
    • It is almost always a better option for you and your spouse to come to a reasonable decision regarding the marital home on your own, however this is often simply not possible. In an emotionally-charged divorce, the marital home can become one of the many issues to argue about. As noted, the marital home is often the biggest asset owned by a couple, and the ability of either or both the spouses to move on with their life can be dependent on getting money from the home. If you really want to stay in the home, then you need to have all your ducks in a row as far as refinancing, or showing the court you have a reasonable budget and can afford the cost of the home.
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Negotiating Conflict in Divorce cases by Elizabeth Wolt, Esq.

Like it or not, you are a negotiator. Everyone negotiates some issue at least once a day. Negotiation is the means by which we communicate with others to get what we want. The back and forth banter is designed to reach an agreement. Why are some of us so much better at this than others? When you and the other side have a shared interest and others that are opposed, how do you bridge the gap. Unfortunately the world is becoming more and more complex requiring more negotiation than ever. This is most noticeable in the family setting between spouses,, partners and parents and their children. Conflict has become a growth industry, but the skills are not taught. I find that almost everyone wants to participate in the decisions that effect them while most people resent or accept decisions dictated or forced upon them by a third party. Therefore, it goes without saying that it is best to reach decisions that effect you through active negotiation. Mainstream strategies for negotiation often leave people dissatisfied, worn out, or alienated, if not all of the above. So most people find themselves in a dilemma. Believing there are only two ways to negotiate: The first way is the person who wants to avoid confrontation at all costs and he or she makes concessions to appear “nice” in order to reach agreement, this type of negotiator usually leaves the negotiation feeling taken advantage of and resentful. No where is this more clear than in the Family law or dissolution of marriage arena. No one knows you better than your spouse; and therefore they know exactly how to make this type of individual feel  exploited, guilty or other manipulative ways to get what they want. The other type is the person who sees all conflicts as an opportunity to win. Winning is everything for this type individual at any cost. This type of negotiator often exhausts resources-both financial and emotional and often takes such a hard position that negotiation is usually not successful and him or her and this person finds their result being enforced upon them by  a Judge who does who  does not have the luxury of time to get the know the parties or their goals for raising their family post-divorce.

There is a third way to negotiate, a way that respects each side and does not unnecessarily cave in and does not bully. This method was developed at the Harvard negotiation Project and moves forward by each party agreeing to decide issues ion their merits rather than through a back and forth battle of wills. Both sides define their goals and the facilitator looks for and points out mutual gains whenever and wherever possible. The standard here for resolution has nothing to so with the will of either party. Their are no tricks or needs to posture. This method shows you how to obtain what you are entitled to and be civil in the process and protects you from those who would take advantage of your fairness. This method was  employed by United States diplomats when they negotiated arms control talks with the former , by Wall Street Attorneys representing Fortune 500 companies in antitrust cases, but by far the best use of this method, in my opinion, is by couples deciding how to divide their parenting time post-dissolution, and how to divide their marital assets and liabilities.

This method works for one issue or many and applies whether one side is experienced or less, a hard bargainer or a softie; and most importantly, this method works even better if the other side knows about it. If a person going through a negotiation process with someone trained in this method, they walk away with a life skill that will serve them well throughout their lifetime. because like it or not, you are a negotiator. it is a fact of life. You will discuss raises with your boss, the price to pay for your house, where to go for dinner with your date. Again, everyone negotiates something every day. So how does one negotiate using the principled method?

  1. Don’t bargain over positions: Bargaining over positions entails each side taking a position, arguing for it, and then making concessions to reach a compromise. Arguing over positions usually produces unwise agreements for the following reasons: The more a party clarifies and defends his position against attack, the more committed that person is to their position making it almost impossible to change that persons mind or get them to see any outcome except the position they have fought so hard for. In the end, the more attention that is paid to a position, the less attention there is to be devoted to meeting the underlying concerns of the parties and results in agreement that often fail to meet either sides underlying goal. bargaining over positions creates incentives that stall settlement because each party is focused on trying to improve the chance that any settlement reached is favorable to them. This usually play out by each side taking a stubborn view usually fueled by emotion and hurt resulting from the failed relationship and using that anger and resentment to hold onto an extreme position. This often takes place even when the party has been informed by their counsel that the law will not support his or her position. This party then proceeds through the negotiation process by making very small concessions only as necessary to keep the negotiation going. This risks being unable to reach any agreement at all. Negotiating like this results as one side or both believing they are being forced to bend to the rigid will of the other and that their legitimate concerns are going unaddressed. If you want to spend the rest of  you children’s childhood arguing with your former spouse, this is the way to ensure that will be your shared future. Any negotiation primarily concerned with the relationship runs the risk of producing a sloppy agreement.
  2. Change the game: negotiate to produce wise outcomes efficiently and amiably. You must separate the people from the problem. Focus ion interests and not positions. generate a variety of possibilities before deciding what to do. Insist that the result be based on some objective standard. This will require you to put your emotions on a back burner and analyze the problems, plans ways to resolve the problem and discuss both the goal and the resolution. There is no “bottom line” in principles negotiation. For example is a parenting related issue. The goal of each parent, I would hope, would be that their children would grow up to feel loved by both their parents, have a caregiver available for them and to make sure they are educated, fed, housed and receive proper medical and dental care and a good education, for example. These goals, as agreed to by the parties up front,  guide you to brainstorm how to make sure this can occur and come up with plans and discussion decidedly directed to obtaining this mutual goal so everyone wins. Future blogs will expand on these basic points and answer frequently asked questions about this method of negotiation.

 

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Can my spouse get my psychological & medical records in a Fla. divorce?

In the case of  BROOKS v. BROOKS, 239 So. 3d 758 (Fla. 1st DCA 2018) .The First DCA clearly lays out the standards that must be met in order to subpoena a party’s personal medical and psychological records in a divorce proceeding.  it held that the trial departed from the essential requirements of law when it required the husband to produce for in-camera inspection his medical, psychotherapist, and pharmacy records subpoenaed by the Wife where Wife failed to establish extreme circumstances required to overcome the husband’s statutory privilege. The records of husband’s treating physician, the medical facility, and the pharmacy fell within the ambit of the statutory privilege, and that privilege is only waived under the extreme circumstances described in the case law. The DCA upheld the requirement for the husband to produce for in camera inspection his personnel file records from his employer.

Full opinion follows

(KELSEY, J.) Petitioner, the husband in a pending dissolution proceeding, asks us to quash an order allowing Respondent wife to subpoena husband’s medical, psychotherapist, pharmacy, and employment records from five non-parties. The order directs that the documents be provided to husband’s counsel and then to the trial court for an in-camera inspection to determine what documents will be furnished to wife. We grant the petition in part and quash three of the five subpoenas.

1.FACTS

The parties lived together from 2005 to 2015, and were married in 2014. They had a daughter early in 2015. Husband filed for dissolution that September. The court ordered 50/50 timesharing and equal decision-making authority while the dissolution was pending.

Wife claims she left the marital home during the summer of 2015 after husband committed an act of domestic violence against her. She also claims husband was on disability for parts of 2011, 2012, and 2014 due to emotional instability. Her present concerns about his mental health stem from his lack of employment and his alleged angry, expletive-laced tirades when they exchange custody of their daughter. She does not, however, assert any issues with husband’s care or parenting of the child.

Wife notified husband that she intended to subpoena his medical and personnel files to gather information about his past mental instability. Her subpoenas sought medical records from husband’s psychotherapist, a medical facility where he was treated, and records from 2012 to the present from a pharmacy where he filled his prescriptions. She sought his entire personnel file from his 2013-2014 employer, and his application and offer letter from his 2015-2016 employer.

Wife argues that husband’s mental health is relevant to child custody, which is why she is seeking his medical records from his psychotherapist and the organizations that participated in his treatment. She also claims that his personnel file from his 2013-2014 employer may contain parts of his medical record and his application for disability, also relevant to his mental health. She asserts that this personnel file could also be relevant to whether husband is voluntarily underemployed, which could affect his child support obligation. Finally, she argues that husband’s application and offer letter from his 2015-2016 employer will be relevant to establishing his child support obligations because it will contain salary information.

II. CERTIORARI STANDARDS 

Certiorari is the proper vehicle for reviewing a discovery order. Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). “[R]eview by certiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Id. Because irreparable harm is a jurisdictional threshold for certiorari review, we must first determine whether a petitioner has made a prima facie showing that the order will cause such harm. O’Neill v. O’Neill, 823 So. 2d 837, 839 (Fla. 5th DCA 2002); Morgan, Colling & Gilbert, P.A. v. Pope, 798 So. 2d 1, 3 (Fla. 2d DCA 2001). If the petitioner demonstrates irreparable harm, we proceed to determine whether the order departed from the essential requirements of law. O’Neill, 823 So. 2d at 839.

Not all erroneous discovery orders cause irreparable harm, but irreparable harm can come from discovery of “cat out of the bag” type information that “could be used to injure another person or party outside the context of the litigation.” Allstate, 655 So. 2d at 94. Because personnel files often contain sensitive, personal information that can be used to harm a party outside the context of the litigation, the discovery of irrelevant portions of the file can cause irreparable harm. See Alterra Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936, 945-46 (Fla. 2002). Therefore, courts should conduct in-camera inspections of personnel files to separate relevant information from irrelevant* information, balancing the “right to privacy with the right to know.” Id.see Walker v. Ruot, 111 So. 3d 294, 294-96 (Fla. 5th DCA 2013).

The “[e]rroneous disclosure of medical records [also] qualifies as irremediable harm.” Zarzaur v. Zarzaur, 213 So. 3d 1115, 1117 (Fla. 1st DCA 2017). A person has the right to prevent the disclosure of “confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition.” § 90.503(2), Fla. Stat. (2016). In a child custody dispute, the mental health of the parents is a factor to be considered, but it does not waive the statutory psychotherapist-patient privilege. Leonard v. Leonard, 673 So. 2d 97, 99 (Fla. 1st DCA 1996). Nor can mere allegations of mental or emotional instability overcome the privilege. Id. A court may deem the privilege involuntarily waived only under “extreme circumstances.” Zarzaur, 213 So. 3d at 1119. “In O’Neill, for instance, an involuntary waiver occurred when the court found the existence of a ‘calamitous event’ after a mother threatened to kill herself and her children and then voluntarily committed herself to a psychiatric ward.” Id. at 1119 (citing O’Neill, 823 So. 2d at 840).

In Zarzaur, this Court quashed a discovery order requiring the petitioner to disclose her medical records from the previous seven years. We concluded the evidence did not establish a “genuine ‘calamitous event.’ ” Id. at 1119. We also held in Zarzaur that the medical records must be relevant to the parent’s present ability to parent. Id. at 1118-19. This is why “prior mental health of the parents is rarely relevant or material in a child custody case.” Bruce G. Borkosky & Mark S. Thomas, Florida’s Psychotherapist-Patient Privilege in Family Court, Fla. B.J., May 2013, at 35, 35.

Because the release of privileged and confidential records has the potential to create irreparable injury, Florida appellate courts require trial courts to conduct in-camera inspections of such records before they are released, to prevent improper and overbroad disclosures. Zarzaur, 213 So. 3d at 1120; Walker, 111 So. 3d at 296; see Alterra, 827 So. 2d at 945-47.

III. ANALYSIS

In this case, wife sought the disclosure of several of husband’s employment and medical records because they might contain information about his alleged emotional troubles and their relation to both his periodic unemployment and his present ability to parent the parties’ child. Wife does not dispute that these records are privileged or confidential. She only argues that she demonstrated an adequate need to overcome those privacy interests. The court did not order direct disclosure of the requested records, but rather ordered that they be produced for an in-camera inspection — a requirement that we approve. Zarzaur, 213 So. 3d at 1120.

  1. Medical Records.

The records of husband’s treating physician, the medical facility, and the pharmacy fall within the ambit of the statutory privilege, and that privilege is only waived under the extreme circumstances described in the case law. Wife has not alleged the occurrence of a calamitous event that would qualify as the extreme circumstance necessary to invade husband’s privileged communications and documents related to the treatment of a mental health condition. In fact, wife was not aware of a single problem regarding husband’s care of their child. She only alleged that he previously committed an act of domestic violence against her and would curse her out when they met to exchange custody. Neither of these claims qualifies as the type of extreme condition that would allow the disclosure of husband’s medical records.

An in-camera inspection of husband’s medical records would not cure wife’s failure to establish the extreme circumstances required to overcome husband’s privilege. The purpose of an in-camera inspection is to separate discoverable information from nondiscoverable information where the sensitivity of the information makes an erroneous disclosure harmful. Here, the court departed from the essential requirements of the law as it applies to the subpoenas for medical records, and disclosure of those records would create irreparable harm. Therefore, we quash the subpoenas issued to the Crane Center, Publix Pharmacy, and Tracey Novak.

  1. Personnel Records.

Florida law cautions against allowing the discovery of entire personnel files, because of the potential of disclosing irrelevant information that could cause irreparable harm. Alterra, 827 So. 2d at 944. Even when releasing only portions of the file, the court should balance the competing interests in the discovery of the information. Id. at 945. Given the nature of personnel files, an in-camera inspection is the best way to balance those interests and properly tailor the discovery. See id. at 945-46. In light of our ruling that wife has not demonstrated entitlement to husband’s past medical records, any disclosure from husband’s personnel files must be limited to financial information relevant to child support calculations. Because the trial court’s order properly requires in-camera inspection of husband’s personnel records, husband has not shown a present departure from the essential requirements of law as to this part of the order. We therefore deny the petition as it relates to husband’s personnel records, without prejudice to husband’s seeking future relief if appropriate after the trial court reviews the records and determines the scope of disclosure.

GRANTED in part and DENIED in part. (LEWIS and M.K. THOMAS, JJ., concur.)

__________________

*“[D]iscovery in civil cases must be relevant to the subject matter of the case.” Walker v. Ruot, 111 So. 3d at 294, 295 (Fla. 5th DCA 2013).

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What happens to my retirement benefits in a Florida Divorce?

All retirement benefits that accrued from the date you say I do until the date one of the spouses filed for divorce is a marital asset. If you had a retirement account prior to marriage, you need to contact your HR department or your plan and ask them to calculate the marital portion of your account giving them the date of marriage and date of filing a petition for divorce. You will also likely need what’s called a summary plan description. It is always advisable, if possible, to divide your marital assets so that the retirement accounts to not have to be divided. This is done by giving one party another asset of equal value. if this is not possible and the retirement account must be split, 401K’s will require a Qualified Domestic relations order. Most family law attorney refer the preparation of these order to specialized attorneys that do only this. Often your plan will provide a sample. You should always ask. Providing a sample QDRO to the attorney can save you both time and money. You will also want to know if you have spousal benefits for your spouse and whether they can be changed or not. Often defined benefit plans where a spousal share has been elected, that election is irrevocable. That portion for your spouse, which usually results in a lower monthly defined benefit must be calculated into the equitable distribution scheme. It is always a good idea to include language in the settlement agreement or request the Judge to put language in place that makes alimony payment until the plan actually pays out and incase the plan cannot be split, or goes broke in the future. Likewise if one party waives entitlement to his or her share of the other’s pension in lieu of alimony payments, there should be language that if the payer spouse default, the payee spouse can go back and claim their share of the retirement benefits.

For example, in the case of  CATHERINE EBERHART v. DENNIS EBERHART, 238 So. 3d 428 (Fla. 1st DCA) 2018 The parties entered into a consent Judgment,which contained a provision that the Wife would make undifferentiated support in exchange for the husband’s waiver of entitlement his share of her Navy Pension unless the wife failed to make the undifferentiated payments. The wife stopped making the payments and the DCA ruled that the husband was entitled to one-half of all retirement benefits the wife accumulated from date of marriage until date of final judgment when her undifferentiated support payments stopped with the caveat that if the wife stopped accruing benefits when she retired, then the marital portion was set at that time, even if the marriage lasted beyond that point.

Full opinion follows:

(PER CURIAM.) This case requires us to interpret imprecise language in a consent final judgment. Our review is de novo. See Toussaint v. Toussaint, 107 So. 3d 474, 477 (Fla. 1st DCA 2013). Because the trial court’s interpretation was wrong, we reverse.

Catherine Eberhart served in the United States Navy for nearly twenty-one years. She had already served about ten years when she married Dennis Eberhart in 1993. She retired in 2004, and she divorced eight years later. Through their consent divorce judgment, the parties agreed that CatherineEberhart would pay “undifferentiated support,” and Dennis Eberhart would waive (temporarily, at least) any entitlement to a share of his wife’s Navy pension.

The judgment also had a provision, though, saying if the undifferentiated support ended, the court could award Dennis Eberhart “a one-half share of the marital portion” of Catherine Eberhart’s pension. And it parenthetically defined the “marital portion” to mean “the date of marriage to the date of this Final Judgment” — the language central to this appeal.

The parties agree that the undifferentiated support ended, and they seem to agree Dennis Eberhart is entitled to “a one-half share of the marital portion” of the pension. The only dispute is about what to make of the parenthetical definition. In other words, what is the “marital portion” of which Dennis Eberhart deserves “a one-half share”?

The marital portion of any retirement plan is the portion accumulated during the marriage. See Horton v. Horton, 62 So. 3d 689, 691 (Fla. 2d DCA 2011). The parenthetical’s language is consistent with this general rule. The marital portion includes all retirement benefits Catherine Eberhartaccumulated during the marriage — or, said another way, all retirement benefits Catherine Eberhartaccumulated from “the date of marriage to the date of [the] Final Judgment.” If she stopped accruing benefits when she retired in 2004, then that is when the marital portion was set, even if the marriage lasted years longer.

The parties could have, of course, agreed to other terms. They could have defined “marital portion” to mean something other than what it usually means. But the language at issue here does not show that the Eberharts did that. The language does not indicate they intended the court to determine the “marital portion” by looking to anything other than (i) the retirement benefits accumulated while the parties were married and (ii) the retirement benefits accumulated while the parties were not married.

REVERSED. (KELSEY, WINOKUR, and WINSOR, JJ., concur.)

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Equitable distribution is NOT enforceable via contempt

Often it is better to request alimony or agree that payments for the sale of a business or home are to be lump-sum alimony to protect yourself in case the party that is required to pay you your half upon sale defaults. This quandary is illustrated in the case below. The Husband failed to pay the Wife her 50% share of the business upon sale and the DCA overturned the trial courts characterization of the payment as support and held that contempt was not available as a remedy. Full case follows:

JOSEPH STUFFT, Appellant, v. SHARON AULL STUFFT, Appellee. 5th District. Case No. 5D17-149. Opinion filed February 23, 2018. Appeal from the Circuit Court for Orange County, Heather Pinder Rodriguez, Judge. Counsel: Nikie Popovich, of Popovich Law Firm, P.A., Orlando, for Appellant. Pamela J. Helton, Dylan J. Hall, Barry V. Newton, Jr. and Mary A. Joyner, of Law Office of Pamela J. Helton, P.A., Clermont, for Appellee.

(PER CURIAM.) Joseph Stufft (“Husband”) appeals the final judgment dissolving his long-term marriage to Sharon Aull Stufft (“Wife”). Husband challenges the provision in the judgment that characterizes payments to be made by him to Wife for her one-half interest in an equitably distributed marital asset as also being “support,” enforceable by contempt. Husband also contends that the trial court erred in failing to distribute the parties’ unpaid federal income tax liability. We agree with Husband on both issues, and therefore, we reverse and remand for further proceedings.

During the course of the marriage, Husband began an airbrushing business that he later sold for the sum of $250,000, to be paid to him in regular installment payments. Husband is also to receive an additional seven percent of all gross sales of the business, as well as seven percent of the sale price of the business if the business is later resold. The trial court found that the business and all sums to be paid to Husband as a result of its sale are marital property, which neither party challenges. In its final judgment, the court ordered that as part of the equitable distribution of the parties’ marital assets, Husband and Wife are to “equally split” all proceeds from the sale of this “marital business,” with Husband to deliver to Wife her one-half share of the proceeds within ten days of Husband’s receipt of any payments from the purchaser of this business. The court further ordered that any failure by Husband to pay Wife her share of the proceeds from the sale of this marital business would result in contempt proceedings because this payment would be “considered support to Wife,” despite the court having separately denied Wife’s claim for alimony or spousal support.1

We conclude that under the circumstances of this case, the trial court erred in also characterizing Wife’s equitable distribution share in the additional monies to be received from the sale of the marital business to be a form of spousal support. Moreover, because “[t]he law is clear that an award subject to equitable distribution is not enforceable by contempt,” Lynch v. Lockyer, 180 So. 3d 1120, 1121 (Fla. 5th DCA 2015) (citing Williams v. Williams, 958 So. 2d 992, 994 (Fla. 5th DCA 2007)), the trial court erred by thereafter determining that any failure by Husband to essentially pay money to Wife for her equitable distribution of this marital asset would be enforced through contempt. If Husband does not pay Wife the monies owed to her for her share of the proceeds from the sale of the marital business, Wife’s remedies are those available to creditors against debtors. See Lynch, 180 So. 3d at 1121 (quoting Williams, 958 So. 2d at 994).

As to Husband’s second issue, the parties did not file federal income tax returns from 1995 through 2013 and also failed to pay their federal income taxes during this time.2 The trial court found the parties’ federal tax debt to be a marital debt and made a separate finding that Wife’s testimony “of ignorance regarding the nonpayment of taxes and the non-filing of [tax] returns” was not credible. However, the court did not distribute this marital debt in its final judgment. Instead, it specifically deferred the apportionment of the income tax liability associated with the parties’ unpaid taxes to the Internal Revenue Service.

“The standard of review of a trial court’s determination of equitable distribution is abuse of discretion.” Coleman v. Bland, 187 So. 3d 298, 299 (Fla. 5th DCA 2016) (quoting Bardowell v. Bardowell, 975 So. 2d 628, 629 (Fla. 4th DCA 2008)). We find that the trial court abused its discretion regarding its failure to distribute the federal tax liability. See Guobaitis v. Sherrer, 18 So. 3d 28, 32-33 (Fla. 3d DCA 2009) (holding that the trial court abused its discretion in failing to equitably distribute parties’ federal tax liability; although the exact amount owed to the Internal Revenue Service was uncertain, there is no doubt that the parties’ federal taxes remained unpaid and were due). The distribution of this marital debt is governed by section 61.075(1), Florida Statutes (2014), which provides, in pertinent part, that “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” set forth in this subsection.

Accordingly, we reverse that part of the final judgment that characterizes Wife’s interest in future payments received from the sale of the marital business as spousal support and remand with directions to the trial court to enter an amended final judgment that distributes the parties’ marital federal tax liability and removes any reference to the distribution of this marital asset as spousal support and the enforcement of the distribution of the proceeds from the sale of the marital business by contempt proceedings. See Hertrich v. Hertrich, 643 So. 2d 115, 116 (Fla. 5th DCA 1994) (affirming a final judgment of dissolution of marriage but striking from the judgment an erroneous provision threatening to enforce an equitable distribution obligation through the trial court’s contempt powers).

REVERSED in part; and REMANDED with directions. (COHEN, C.J., and LAMBERT, J., concur. EISNAUGLE, J., concurs in part and dissents in part, with opinion.)

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1The court found that Wife’s current monthly income is $2400 and Husband’s current monthly income is $2240. Wife has not filed a cross-appeal challenging the court’s denial of her request for alimony.

2The amount of the parties’ federal income tax liability had not been determined at the time of trial.

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(EISNAUGLE, J., concurring in part, dissenting in part.) I would not reach the contempt issue because it is not ripe. See Nathanson v. Rishyko, 140 So. 3d 1054, 1055 (Fla. 4th DCA 2014) (holding that the district court lacked jurisdiction to review a contempt order where no sanction was imposed); see also Diaz v. Citizens Prop. Ins. Corp., 227 So. 3d 735, 736 (Fla. 3d DCA 2017) (“[W]e are without jurisdiction to address the portion of the appeal relating to attorney’s fees. This is so because no amount has been fixed by the trial court and the part of the final judgment that finds entitlement thereto is not ripe for our review.”); Mills v. Martinez, 909 So. 2d 340, 342 (Fla. 5th DCA 2005) (holding that determination of entitlement to attorney’s fees without setting amount was non-final, interlocutory order even though it was included in a final judgment). I otherwise concur.

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Award of Alimony to Wife earning more than Husband-It is possible

Naples and Ft. Myers Family Law Attorney, Elizabeth Wolt won an award of temporary spousal support for a Wife that earned more than her husband where the husband was living in a supportive relationship. She was able to show need of the Wife and ability of the Husband to pay. See Rosa V. Rosa Collier Case No. 17-DR-1301

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How Marital Assets and Liabilities are divided in Florida

This is an often asked question. Florida is an equitable Distribution State. That usually means that all assets and all liabilities acquired from the date you say “I do” until the date one of the spouses files a Petition for a Dissolution of Marriage, no matter whether titled jointly or in one of the parties names is a marital asset or liability. It needs to be valued and split. Attorneys and the courts endeavor to value and split the assets and liabilities evenly absent extenuating circumstances.

Sometimes a party wastes marital assets through gambling or on a paramour, for example. In order to have the court order those assets that are wasted by allocated to the party who wasted them you must prove that marital assets were used for a purposes that did not further the marriage. In reality, this is a high burden to meet. usually only proof on monies spent on a paramour will suffice. A bad investment absent proof it was made with ill purposes will not be enough.

It is advisable for the unrepresented client to read the statute carefully and consult an attorney. See 61.075 Fla. Stat.

Law offices of Elizabeth Wolt (239)  353-9988

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Equitable Distribution in Florida Divorce

In PEREZ v. PEREZ, 238 So. 3d 422  (Fla. 5th DCA) 2018 The DCA overturned a Final Judgment of Dissolution of Marriage finding error in distributing or valuing property that had been deeded to the parties’ son; and also finding error in awarding alimony without making findings regarding wife’s need and husband’s ability to pay.

Full opinion follows:

(PER CURIAM.) Orlando Perez (“Husband”) claims that the trial court erred in its distribution of marital assets and alimony determination set forth in the final judgment dissolving the parties’ marriage. We agree and remand for further proceedings.

During their twenty-three-year marriage, the parties jointly owned several pieces of real estate. Prior to their separation, they executed warranty deeds in which they conveyed their interests in four properties to their two adult sons. They retained title to a house in Marco Island, a condominium unit in Naples, Florida, and an apartment in Colombia. During an earlier part of their marriage, Husband worked as an architect, but in more recent years, he became a security guard. Diana Navarro Perez(“Wife”) was primarily a stay-at-home mother, although from time to time she earned minimum wage working odd jobs.

Wife filed her petition for dissolution of marriage on June 12, 2012, in which she requested permanent alimony and sought equitable distribution of their marital assets. In her petition, she joined their sons as third-party defendants, claiming that Husband and the sons had engaged in a fraudulent scheme to divest her of her rightful share of those properties. Wife’s petition included requests to reform the deeds or to declare a constructive trust so that the properties they had deeded to their sons could be returned to the marital estate for equitable distribution. Husband’s motion to dismiss Wife’s claims for reformation of the deeds and declaration of a constructive trust was granted, as was his motion to dismiss their sons from the dissolution proceedings.

A trial was held during which Husband, Wife, and one of their sons testified. Husband testified that they deeded the properties in question to their sons in keeping with an alleged Colombian custom of parents providing for their children. Husband claims that he and Wife discussed that concept repeatedly throughout their marriage. Wife acknowledged that she signed the deeds with the intent of conveying the properties to their sons, but she understood that it was to safeguard the properties from later spouses.

The trial court asked the testifying son whether he would return the properties to his parents if they needed money, and the son agreed that he would. For some reason, the trial court misunderstood that testimony, and later relied upon an incorrect recollection that the son had testified that he would give the property back to Husband but not to Wife in case of financial need.

Nearly eleven months post-trial, the court entered its final judgment dissolving the marriage and awarding Wife $1750 as permanent periodic alimony. The distribution of marital assets included the properties or the value of the properties that the couple previously deeded to their sons. The court awarded Husband the house in Marco Island, along with two of the properties deeded to their sons. The court awarded Wife the apartment in Colombia and the condominium in Naples, as well as one vacant lot that the parties deeded to their sons. The final judgment ordered the sale of a piece of property in Tennessee with the proceeds split equally between the parties, despite stating that the “Court is mindful that neither party may force the sale of the Sevier County, Tennessee vacant lot since the parties’ adult children in fact own it.”

Regarding the alimony award, the court did not explain how it calculated the $1750 amount. “Although the trial court has considerable discretion in determining an award of alimony, that discretion is not unlimited.” Motie v. Motie, 132 So. 3d 1210, 1213 (Fla. 5th DCA 2014). Likewise, the final judgment does not explain what income the trial court attributed to Husband. A “party’s ability to pay alimony should be based on the party’s net income; not gross income.” Gilliard v. Gilliard, 162 So. 3d 1147, 1154 (Fla. 5th DCA 2015) (citing Kingsbury v. Kingsbury, 116 So. 3d 473, 474 (Fla. 1st DCA 2013)). Given the length of the parties’ marriage, an award of permanent periodic alimony to Wife may be appropriate. However, we reverse and remand the alimony award with instructions for the trial court to either state its specific findings that demonstrate Wife has a need for $1750 per month and that Husband has the ability to pay that amount or to recalculate the alimony based upon the trial court’s written findings of Wife’s need and Husband’s ability to pay.

We reverse the equitable distribution of marital assets set forth in the final judgment because it is not supported by competent, substantial evidence. The trial court “awarded” each spouse some of the property that they had jointly deeded to their sons. “Section 61.075(6), Florida Statutes (2003), provides a bright line rule for setting the date to be used in determining the marital classification of assets and liabilities. If there is no valid separation agreement, the cut-off date is ‘the date of the filing of the petition for dissolution of marriage.’ ” Rao-Nagineni v. Rao, 895 So. 2d 1160, 1161 (Fla. 4th DCA 2005) (quoting Caruso v. Caruso, 814 So. 2d 498, 502 (Fla. 4th DCA 2002)). There was no separation agreement here; thus, the trial court should have looked to what the parties owned when the petition was filed unless it makes written findings as to a factual and legal basis to do otherwise.

“Absent an agreement, a nonmarital asset may not be awarded to the non-owner spouse as equitable distribution.” Mitchell v. Mitchell, 841 So. 3d 564, 567 (Fla. 2d DCA 2003). Here, the distribution ordered in the final judgment included non-marital assets, i.e., the property jointly deeded to the sons. The trial court awarded more highly valued non-marital assets to Husband than to Wife; thus, Husband received a lower actual distribution than Wife. It is clear that the trial court lacked jurisdiction under the then-current pleadings and record evidence to compel the non-party sons to return any of the properties to either Husband or Wife. See Martinez v. Martinez, 219 So. 3d 259, 262 (Fla. 5th DCA 2017). Thus, the trial court’s attempted redistribution of the sons’ property to the parents cannot be upheld.

Even if the trial court simply considered the value of the property deeded to the sons when arriving at its equitable distribution, it erred because it made no finding of fraud, waste, or dissipation on the part of Husband. See Roth v. Roth, 973 So. 2d 580, 585 (Fla. 2d DCA 2008) (“[T]he trial court must make a specific finding that the dissipation resulted from intentional misconduct.”). While the parties testified to having different reasons for why they deeded properties to their adult sons, it was undisputed that they both executed the deeds for the purpose of transferring those properties. Furthermore, the trial court’s concern that Husband somehow controlled the property deeded to the sons and could force them to give it back to Husband is not supported by competent, substantial evidence; it is based on the trial court’s misunderstanding and inaccurate recollection of the son’s testimony. Now that there is a transcript of the testimony, the trial court can reconsider that point.

The trial court acknowledged it lacked jurisdiction to force the sale of the Tennessee property because the parties deeded it to their sons; thus, that portion of the final judgment is also reversed.

We affirm the dissolution of marriage. The trial court’s award of $1750 per month as permanent periodic alimony is reversed with instructions for the trial court to consider and make specific findings on whether Wife has a demonstrated need for, and whether Husband has the ability to pay, such an award. We reverse and remand the distribution of marital assets and instruct the trial court on remand to make an equal distribution unless it gives specifically stated reasons for an uneven distribution. We further instruct the trial court to limit its consideration to assets owned by the parties at the time the petition was filed unless it makes specific findings, supported by the record and the law, that justify consideration of the value of any non-marital assets, such as the property deeded to the parties’ sons. We reverse that portion of the final judgment ordering the sale of the sons’ Tennessee property for the reasons stated above. On remand, the trial court can rely on the record evidence or take additional evidence and conduct such hearings as it might deem appropriate as part of its further proceedings that are consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS. (EVANDER, EDWARDS and EISNAUGLE, JJ., concur.)

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