New Amendment to Florida Family Law Rule 12.010

Florida Family Law Rule of Procedure 12.010 states the purpose of the family law rules themselves. It has today seen amendments approved by the Supreme Court available here. In essence the amendment removes any reference to how the rules should be construed and includes in the purpose of the rules the avoidance of multiple cases by the same parties.

2d DCA Rejects Equitable Distribution

The Second District Court of Appeal today rejected the equitable distribution of assets and debts in the long-term marriage of Parks v. Parks. While rejecting the remaining arguments, the Court found that it was error to fail to award the Wife a setoff for the reasonable rental value of property occupied by the Husband, and that it was error to award the Wife half of the proceeds of a home-equity line of credit as equitable distribution while allowing the Husband to keep the purchase made with his half of the proceeds as non-marital.

Alimony Award Reversed by 4th Due to Income Disparity

The Fourth District Court today reversed the alimony award below in Kitchens v. Kitchens on the basis of the disparity in the parties' income it would create. The Court paid particular attention to the lower tribunal's inclusion of discretionary disbursements from retirement as income, drawing a clear line between mandatory IRA withdrawals due to age and discretionary receipt of funds from retirement.

15th Circuit Final Judgment Reversed for Lack of Findings

Among the reasons for reversal of the Final Judgment in Lift v. Lift today by the Fourth District Court were the award of alimony without findings as to income or statutory factors, the failure to make statutory findings regarding values and reasons for equitable distribution, and the disregard of various stipulations of the parties regarding equitable distribution, again found to be binding on the Court as well as the parties. Of particular interest was the Fourth District's rejection of the Court's award of half-shares of the marital veterinary business to each party despite a stipulation that the Wife would retain it at an agreed value. The Fourth District ruled that:

"Second, the parties correctly agree that the trial court erred in awarding each a half interest in the wife's veterinary business, thereby forcing them to be business partners. As we have previously held, compelling former spouses to remain in business together "creates [an] intolerable situation." Novak v. Novak, 429 So. 2d 414, 414-15 (Fla. 4^th DCA 1983); see also Manolakos v. Manolakos, 871 So. 2d 258, 260 (Fla. 4^th DCA 2004) ("[d]issolution of marriage being what it is, it is clearly an abuse of discretion for the trial court to order two parties who have stated that they do not want to continue to work together after their divorce to do just that")."

Judge’s Arrest Demanded Recusal, 4th DCA Rules

The opinion in Moskowitz v. Moskowitz released this week from Florida's Fourth District Court of Appeal made clear that recusal is required not based on the actual existence of bias, but on a well founded fear of bias, in this case resulting in part from the Judge's arrest on marijuana charges. Of note is the Fourth District's statement that "We do not gainsay the striking improvidence of allowing the Judge to continue to sit on civil cases while criminal charges were pending against him. Yes, the Judge is entitled to the presumption of innocence in his criminal case. But that hardly generates a coincident supposition that litigants in cases over which he presides while his own criminal charges are unresolved need have no reason to fear his impartiality has been impaired. We are bereft of reasons to escape reversal on this ground."

Equitable Distribution Changes Loom…

On July 1, 2008, only a few short weeks away, the new version of Florida Statute §61.075 will take effect. Basically the changes allow for:

1. Partial equitable distribution on an interim basis, prior to trial, if the Court finds good cause and sets aside the assets in question;
   
2. Sworn motions asking for that partial early distribution;
   
3. The Court's final equitable distribution taking into account the assets already distributed;
   
4. A shiny new restatement of the statutory burden of proof in favor of assets acquired during the marriage being marital, and against the party claiming otherwise;
   
5. Another shiny new restatement of the relevant statutory burdens on interspousal gifts…
   

   The absolute abolishment of special equity…in favor of more claims of unequal distribution. Seems like it would make it easier to get an unequal distribution than a special equity grant, but time will tell…
   

   
    

The full text of the bill to be a law can be found here. I guess the old Chinese curse holds true for us…we all live in interesting times.

Third DCA Sets a Limit on Rehabilitation

Rehabilitative alimony has long been allowed in Florida Courts, but without statutory guidelines, the best the case law really had to offer was that you had to have a plan for rehabilitation and that, most likely, there has to be some nexus between the need for rehabilitation and the alimony awarded. The Third District found error in an award of rehabilitative alimony this week where as the marriage was short-term, the Former Wife had skills but chose not to employ them, there were no kids, and there was no evidence of a need for rehabilitation as a result of the marriage or anything that occurred during the marriage. For more, see the full text of the opinion here.