Ft. Myers Family Law Blog

In the case of Schmachtenberg v. Schmachtenberg, 34 So.3d 28 (Fla. 3rd DCA 2010), the court stated on a modification action, income can't be imputed to the Former Wife based on an agreement from an eight year old agreement from the divorce.

The trial court, when determining the amount of alimony that the Husband should pay in a modification case, imputed $18,000 in income to the Wife. This was the same amount that the parties agreed to impute to her in 2002 in their Marital Settlement Agreement. On appeal, the District Court held that because the "projected and estimated" income imputed to the Wife in the marital settlement agreement did not come to fruition the amount should not have been imputed to her:

In Castleberry v. Castleberry, 29 So.3d 1207 (Fla. 1st DCA 2010), the trial court said that an alimony award was not justified if the Former Wife makes money than the Former Husband. However, the Court must have been suspicious of the Former Husband's ability to earn money after the case because it stated "nominal alimony" could be awarded. This means if the trial court awarded $1.00 a month in alimony, it could be increased if the Former Husband decides to make more money after the case was over. If the Court awarded "$0" in alimony, it couldn't later give alimony if the Husband made more money. This case is important for "semi-retired" people that are trying to calculate a budget for retirement. It is a bargaining chip in divorce cases to give more assets in the initial divorce if alimony can be waived. Each case is different and you need a professional to advise you.

This case exams the problems judge's face when establishing value of retirement accounts at the time of trial. In the case of Lilly v. Lilly, 35 So.3d 1022 (Fla. 5th DCA 2010), the court stated that a spouse must prove the value of an asset beyond a mere assertion in a pleading.

TRIAL COURT ERRED BY AMENDING FINAL JUDGMENT TO CHANGE VALUATION DATE AND VALUES OF RETIREMENT ACCOUNTS TO REFLECT A DOWNTURN IN THE ECONOMY BASED SOLELY ON HUSBAND'S BARE ASSERTIONS IN REHEARING MOTION.

In the case of L.J. v. A.S., 25 So.3d 1284 (Fla. 2nd DCA 2010), the court granted a biological father the right to get time-sharing with his child, even though the mother was married to someone else at the time of birth.

The father, L.J., is the undisputed biological father of a child born to the mother, A.S., while she was married to M.A., a foreign national. The mother and M.A. were married on October 22, 2002, and the mother instituted divorce proceedings less than two months thereafter. While the divorce proceedings were pending, the mother and L.J. had intimate relations that resulted in the conception of the child at issue. Thereafter, L.J. was regularly involved in the child's life, exercised visitation and paid child support. The father, L.J., regularly attempted to obtain a paternity determination but met with dismissals of his actions for lack of standing because the child had been born during the mother's marriage to another man and the mother's refusal to institute an action to terminate or disavow the legal father's rights despite the fact that the legal father was, according to the mother, "no where to be found."