No Marriage Means No Alimony… and No Distribution
You cannot receive alimony or equitable distribution if you were never married. This might seem obvious, but sometimes there are people who think they are married but the law says otherwise.
The West Palm Beach divorce lawyers and attorneys of Nugent & Zborowski recently observed this scenario in Betemariam v. Said, 35 Fla. L. Weekly D2542a (Fla. 4th DCA, Nov. 17, 2010). In Betemariam, the Wife believed that the parties were legally married in Virginia before the couple relocated to Florida with their two children.
However, once the Wife filed for divorce in Florida, from what she thought was her successful radiologist-husband, it was brought to the attention of the court that the parties had never actually obtained a marriage license in Virginia. Although parties were married by their Imam in a religious ceremony, they never obtained a marriage license in Virginia.
The Betemariam court held that the marriage was not valid because neither party obtained a marriage license. The Court noted that the Wife had several previous marriages, so she should have known that a license was required to form a valid marriage. Because the marriage was not valid, the trial court did not have the ability to award the “wife” alimony, or to equitably distribute the parties’ assets.
Essentially, what the Betemariam held was that the case needed to be treated as a paternity case, and, thus, the Court awarded child support and developed a parenting plan for the parties’ children. However, there was no alimony awarded to the “wife”.
It should be noted that the Court applied Virginia law to determine whether there was a valid marriage. Chapter 741, Florida Statutes lays out the legal requirements for a valid marriage in Florida (click here for a link to the statute), which are largely the same as the requirements in Virginia.
Click here to see the Fourth District Court of Appeal’s opinion in Betemariam.
For more information, call 561.844.1200 or click here to arrange to speak to a divorce lawyer with Nugent & Zborowski about your divorce, annulment or paternity case.
The West Palm Beach divorce lawyers of Nugent and Zborowski are West Palm Beach divorce attorneys, and also serve as Boca Raton divorce lawyers; Palm Beach Gardens divorce lawyers; Jupiter alimony attorneys; grandparents’ rights attorneys; and fathers’ rights attorneys. For more information or to schedule a consultation call (561) 844-1200 or visit the firm’s website, www.nugentlawfirm.com.
Equitable Distribution Law Update: Appeals Court Applies Kaaa v. Kaaa
The divorce lawyers of Nugent & Zborowski practice all areas of family law in West Palm Beach, Florida. The firm also handles alimony, child support, custody and equitable distribution cases in West Palm Beach, Boynton Beach, Palm beach Gardens, Boca Raton, Jupiter and Stuart.
The Palm Beach and Martin County matrimonial and family law attorneys of Nugent & Zborowski recently observed the October 22, 2010 opinion of the 5th District Court of Appeal in Leider v. Leider, 35 Fla. L. Weekly D2332b (Fla. 5th DCA Oct. 22, 2010).
In Leider, the appeals court had issued an opinion before the Florida Supreme Court ruled in Kaaa v. Kaaa, 35 Fla. L. Weekly S521a (Fla. Sept. 30, 2010). In light of the Florida Supreme Court’s ruling, the Leider court issued a substitute opinion that sheds light on how Kaaa v. Kaaa may be interpreted going forward.
The Leider court held that “funds spent for repairs were not improvements that contributed to the value appreciation of the house…we reverse the part of the final judgment awarding the wife $27,481 as a marital asset and remand for further proceedings consistent with Kaaa.”
The Leider decision seems to be in line with many of the federal tax code provisions that delineate between repairs and improvements on real property, although it remains to be seen whether other district courts will agree with the Fifth District Court of Appeal’s conceptual notion that repairs made to property using marital funds do not create a marital asset subject to equitable distribution.
Click here to read the full text of the court’s opinion in Leider v. Leider.
It is important to consult with an experienced divorce lawyer about how Florida’s equitable distributionlaws apply to your case. For more information, call 561.844.1200 or click here and speak to an attorney with the Law Offices of Nugent & Zborowski about how Florida’s equitable distribution laws will apply to govern the distribution of your assets upon divorce.
The attorneys of Nugent & Zborowski exclusively handle Divorce & Family Law matters in and around West Palm Beach and Palm Beach County, Florida, and also handle divorce, paternity and modification of alimony and child support cases in the vicinity of Palm Beach, North Palm Beach, Palm Beach Gardens, Lake Worth, Stuart, Royal Palm Beach and Jupiter. For more information or to schedule a consultation call (561) 844-1200 or visit the firm’s website, www.nugentlawfirm.com.
Supreme Court of Florida Defines Law in Equitable Distribution Case
The divorce attorneys of Nugent & Zborowski practice all areas of family law in West Palm Beach, Florida. The firm also handles paternity, juvenile dependancy, modification of alimony and child support and child custody cases in Stuart, Palm Beach Gardens, Wellington and Royal Palm Beach and Jupiter.
The Palm Beach and Martin County matrimonial and family law attorneys of Nugent & Zborowski recently observed the September 30, 2010 opinion of the Supreme Court of Florida in the case of Kaaa v. Kaaa, 35 Fla. L. Weekly S521a (Fla. Sept. 30, 2010). This decision is a landmark decision in Florida as it resolves a split between the several appellate courts on whether the passive, market driven appreciation on a non-marital property that accrues during the marriage is an asset subject to equitable distribution when marital funds are used to service debt on the property.
In Kaaa, the parties were married for twenty-seven years and the husband purchased a property before the marriage. During the marriage the husband paid down the mortgage on the property with marital funds. At trial, the court held that the wife was not entitled to any of the passive appreciation in the home. The Second District Court of Appeal affirmed the trial court’s ruling but certified conflict to the Florida Supreme Court.
The Supreme Court reversed the trial court and Second District Court of Appeal and adopted the position of the First District Court of Appeal in Stevens v. Stevens, 651 So. 2d 1306 (Fla. 1st DCA 1995): 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.
Click here to read the full text of the court’s opinion in Kaaa v. Kaaa.
For more information, call 561.844.1200 and speak to an attorney with the Law Offices of Nugent & Zborowski about how Florida’s equitable distribution laws will apply to govern the distribution of your assets upon divorce.
The attorneys of Nugent & Zborowski exclusively handle Divorce & Family Law matters in and around West Palm Beach and Palm Beach County, Florida, and also handle divorce, paternity and modification of alimony and child support cases in the vicinity of Palm Beach, North Palm Beach, Palm Beach Gardens, Lake Worth, Stuart, Royal Palm Beach and Jupiter. For more information or to schedule a consultation call (561) 844-1200 or visit the firm’s website, www.nugentlawfirm.com.
Fourth DCA Redefines Burden of Proving Passive Appreciation of Marital Assets
The Court of Appeals for the Fourth District of Florida recently affirmed the decision of a trial court that held a husband could not use the S&P 500 as the benchmark to assist in the determination of whether the appreciation of his stock portfolio was marital (and thus subject to equitable distribution) or non-marital. Mathers v. Brown, 21 So. 2d 834 (Fla. 4th DCA 2009).
Generally speaking, the appreciation of a stock portfolio that existed before marriage is “non-marital” and not subject to equitable distribution upon divorce in Florida if the appreciation is “passive” and not attributable to “marital effort.” However, a spouse contending that the appreciation of their stock is non-marital has the burden of proving that the appreciation was due to passive market forces and not marital effort.
Proving that appreciation was due to market forces can be a serious issue when a spouse is a day-trader or hedge fund manager, or otherwise brought a substantial portfolio of assets into their marriage. In the past, courts in these types of cases would typically use the S&P Stock Index as the “benchmark” for passive appreciation; thus, all appreciation over and above the appreciation in the S&P Stock Index would constitute “active appreciation” subject to equitable distribution.
In Mathers, however, the trial court declined to allow a party to use the S&P Stock Index as the benchmark for differentiating between active and passive appreciation. In Mathers, the husband’s stock portfolio appreciated by $2.8 million dollars during the parties four year marriage. At trial, the husband argued that the appreciation of his portfolio over the parties’ marriage should be offset by an amount equal to the appreciation of the S&P Stock Index over the same period. The trial court rejected Husband’s argument and found the entire amount of the appreciation to be a marital asset subject to equitable distribution, finding that:
“[Husband] bought only a few S&P 500 stocks… instead, he bought and sold many foreign stocks and foreign index funds… The Husband made over 700 separate trades during the marital time frame. The S&P 500 Stock Index assumes a buy-hold strategy where stocks are purchased, not sold, and are held for a long period of time. As a result, the Court finds that any index, whether it be the S&P 500 Stock Index, or any other one available for analysis during the term of the parties’ marriage, would be entirely speculative… In light of the foregoing, the Court will not apportion and offset the growth from the Husband’s stock account by any index factor and, as a result, all of said [appreciation] is a marital asset.”
On appeal, the Mathers court affirmed the trial court, finding that Husband failed to meet his burden of establishing any portion of the appreciation in his portfolio was due to passive market conditions. The Mathers court held that:
For more information, call 561.844.1200 and speak to an attorney with the Law Offices of Matthew S. Nugent about how Florida’s equitable distribution laws apply to your situation.