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In Family Court, Follow the Rules

Posted by Antonio G. Jimenez | Nov 30, 2017 | 0 Comments

Asking for alimony and attorney's fee is not a simple request that a judge can just say yes or no. A recent appealed case from the 5th District shows us that while judges in family court have a lot of discretion, they still have to follow specific rules. In this case, the wife was ordered to pay the husband $800 a month in alimony plus pay $800 a month for 28 months for retroactive alimony of $22,400. She was also ordered to pay $5,000 for her husband's attorney plus obtain a life insurance policy of $500,000 for security on her alimony obligations. So where did the judge go wrong?

For starters, he based the alimony amount on gross income instead of net income. Numerous cases have ruled that a party's ability to pay alimony should be based on the party's net income; not gross income. What a party takes home after taxes is where the calculation should begin.

Then once we have the net income for each spouse, the court then has to make specific factual findings that one spouse needs alimony and that the other spouse can pay. This judge failed to make specific factual findings on need and ability.

Now let's take a look at the life insurance policy that the judge ordered. Again, it seems this judge wanted to cut corners and not do a thorough job. Florida law allows a judge the discretion to order a spouse that has to pay alimony to get a life insurance policy to protect the alimony awarded. However, before a judge can order this the judge must make factual findings as to whether the spouse can obtain the life insurance policy, how much will the insurance policy cost, whether the spouse can afford to pay for the plan, and whether it is appropriate to order. This judge ignored the rules, and the award of life insurance goes away. 

The last issue the judge committed error was the awarding of attorney's fees. Again, this is not a simple ask, and the judge says yes or no. For an award of attorney's fees, a judge must first determine that a party is entitled to it based on need and ability analysis. Meaning one spouse needs the attorney's fees, and the other spouse can pay the fee. Once this is determined, the judge must then make specific factual findings as to whether the hourly rate of the attorney is reasonable and if the hours spent on the case was reasonable. Awarding attorney's fees without making these findings is an abuse of the judge's discretion and will get the case reversed on appeal. In this case, this is what happened, and everything that was awarded got thrown out, and the judge must start over.

Family law cases are not simple. The perception is that these cases are simple to both litigate and preside over as a judge. The reality, however, is that there are a lot of rules that must be followed by both the attorneys and the judges. The attorney for the husband who benefited from the judge's numerous mistakes should have been more aware of the law and should have made objections or requests that the court do a more thorough analysis before making a decision.

The one important thing to remember in family cases is that judges have a lot of discretion. The mistakes made by this judge were that he or she did not do a thorough job of making a decision on awarding alimony, life insurance, or attorney's fees based on the specific facts of the parties. If this judge would have based these awards on the need and ability, used net income instead of gross, determined the hourly rate and hours spent, and determine the cost of the life insurance policy then perhaps the husband would have kept everything he was awarded. Instead, the case gets returned to court for more litigation and more expenses. Divorce cases can become even more expensive when lawyers are not up to date on the law. 

 
 

About the Author

Antonio G. Jimenez

Miami Family Law Attorney Antonio G. Jimenez Providing Experienced, Highly Effective Legal Representation in Miami Family Law Cases When dealing with family law matters that have the potential to impact you and those you love significantly, you need an experienced attorney who will fight to ens...

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