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.

Fifth District Protects Your Rights…Even if You Don’t

The Fifth District Court this week in the D.B. v. W.J.P. decision reviewed a mediation agreement from a dependency case where the Mother agreed to a Chapter 751 kinship order granting temporary custody to the maternal grandmother…on her letter to the Court advising she did not agree with the order, the Fifth found that a hearing was necessary despite the agreement…

Third District Reviews Deferred Division of Retirement Account

The Third District this past week released the Rivero decision, relating to an agreement that divided the value of a pension at time of divorce, but deferred payment of that sum until the Husband retired or otherwise left his employment. The Wife's attempt to divide dividends prior to his retirement or termination was rejected…

Second District Defines Limits on Imminent Harm

The Second District this week released the Oettmeier decision regarding injunctions for domestic violence, which marks a clear line between fear of imminent harm and reasonable fear of imminent harm…

Fourth Sets Clear Limits on Charging Liens

The Fourth District, on the 18^th, released the Rudd opinion, related to charging liens. The holding is essentially that while a charging lien may attach to the proceeds of equitable distribution in a divorce case, and these constitute favorable proceeds, it is not acceptable to include fees incurred in pursuit of the charging lien in the lien itself, and it is not acceptable to award a charging lien which extends beyond the scope of those favorable proceeds to the entirety of a party's assets. The Court found no error, however, with a charging lien which stated one amount owed resulting in a higher figure ordered…

4th Begins to Set a Limit on Fees

In what may be an attempt to back away from substantial fee awards between parties who each have significant assets, the Fourth District released the Von Baillou decision on July 5^th, reversing a fee award to a party who had substantial assets from the divorce on the grounds of lack of need. The ruling specifically points out that a financial review remains the first step for a fee award even under Rosen, and clearly requires at least some evidence of need…