By: Mike Gora
Q: When my husband and I got married, he had a great career going in real estate sales and I was a neophyte real estate attorney, in my own practice, barely making ends meet. That was 15 years ago.
About 10 years ago, I caught a break and was hired by the real estate partner of a very large, multi-city Florida law firm. I have become a partner, and make an income well into six figures. I have a 401K, well on its way to providing me a good retirement.
My husband’s career has gone in the other direction in the last four years or so when the real estate market in Palm Beach County slowed down. He started spending his time at his hobbies, and not his work. He used more gas for his 35-foot fishing boat than for his car, and more time playing golf at his all-male country club than trying to sell real estate.
It’s not as if he had become Mr. Mom. We have no children. We have accumulated my retirement, a non-retirement stock portfolio of a couple of million dollars , almost a million in equity in a nice house on a canal off the Intracoastal, and a small vacation house in North Carolina and an art collection.
We do have some divorce lawyers in my firm, but not in Boca, and I do not want to ask them personal questions. I have done some reading on my own, and have concluded that there is no way around my husband getting half of the value of our assets in a divorce case under the Florida no fault divorce statutes. I am also afraid that he might be able to get alimony from me as well. Is there any way around that kind of outcome?
A: The circuit judge will have the power, under Florida Statute 61.075 (1)(j), to award you a distribution of more than 50 percent of the marital property if your attorney can convince the judge that your husband’s recent habits are “other factors” which make the unequal distribution “necessary to do equity and justice between the parties.”
Your husband’s spending patterns and employment history are relevant to the distribution of assets and liabilities. The greater problem is to find a circuit court judge willing to use his or her discretion in applying this statutory provision. The easier road the judge will see ahead is to make an equal distribution, and avoid an appeal.
However, well known older Florida appellate decisions give one party more than half because the other was, “a habitual nag, contributing nothing;” because all a husband did was “sit around and drink beer, while the wife took care of a trailer park;” or because a wife had contributed nothing to the marriage, and was a “mere ornament.” These decisions, however, reoccur over time but are not numerous.
Florida alimony law is clearly intended to be unbiased. The right to alimony of women and men depend on exactly the same criteria. If he has need for alimony to approach your existing lifestyle and you have the ability to pay, some alimony will probably be granted.
To avoid alimony, you will have to show that your husband’s failure to be able to support himself was voluntary, and if he had reasonably applied himself to his profession, he would be able to support himself. This may be a problem for you because of the downward spiral of the real estate market.
Recent cases, however, hold that the lifestyle analysis can exclude luxuries like the boat and country club expenses, which will give you some arguments to limit an alimony award.
Michael H. Gora has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton. Mr. Gora may be reached by e-mail at mhgora@sbwlawfirm.com.