Q: My husband, a nurse, and I were separated in 2008, after a 20-year marriage. A month later his National Guard Unit was sent to Iraq. I had not worked in many years, during which time I raised the children and took care of the home. I have now gone back to work in retail, but do not make enough money to keep the household going myself. Our son is a senior in high school and my daughter is just a freshman.
While in Iraq, my husband was injured in a firefight and lost a leg. As soon as he got home he filed a divorce case, although I had suggested a try at reconciliation. Neither of us have lawyers. We are trying to settle, and are arguing over whether or not I am entitled to alimony, and the proper amount for child support.
Dr. Mike Gora
In addition to his disability pay he receives Social Security and several thousand dollars a month from a trust fund that his parents have just set up for him. In determining alimony and child support what income, or assets, can the Florida courts consider?
A: Under ordinary circumstances, the Florida courts consider all forms of income available to either party for either alimony or child support purposes. Social Security benefits would be counted as ordinary income. However, federal law prohibits the division of veteran’s combat disability benefits for alimony or child support purposes, except under very narrow circumstances (Check the web site for the U.S. Department of Health and Human Services/ Administration for Children & Families). The Florida courts have held that the federal law pre-empts the state law. This is why having a social security disability lawyer can be especially important if you disagree with Social Security’s initial decision on your claim and file an appeal.
Income from a trust, on the other hand, can clearly be considered for both alimony and child support purposes; even if the trust was not set up until after the divorce petition was filed. However, a trust can be revocable or irrevocable.
If your husband and his parents wanted to try to defeat your claim, they might revoke the trust. If they later set up a regular gifting program to funnel money to your husband, that too can be counted as income for alimony and child support purposes if a court finds that it is a regular source of support
The money that was set aside in the trust to produce the income is not divisible as a marital asset, whether set aside before or after the divorce petition was filed. However, if your legitimate needs, and those of your children, exceed the amount that your husband can pay from the his income, a Florida court can, under limited circumstances, invade the money invested in the trust for support payments.